An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Judge President, John Hlophe, accused of unduly trying to influence some of the judges of the Constitutional Court, has gotten his lawyers to write a scathing letter to the Minister of Justice who had told him last week that he could not return to work. The Minister says that Hlophe had asked the Minister to grant him special leave until the Judicial Services Commission (JSC) has dealt with the complaint against him and as the complaint has not been finalised he cannot return to work.
I must say, legally Hlophe has a point. According to the Sunday Times Hlophe’s lawyers then wrote to the Minister stating:
“The granting of such leave does not entitle the Honourable Minister to convert a special leave into a device to indefinitely sideline a judge from lawfully executing his judicial duties in terms of the constitution and his oath of office,” says the letter, a copy of which is in the Sunday Times’s possession.
It draws a comparison to the situation in Pakistan where, under former p resident Pervez Musharraf, the chief justice was in effect suspended. The letter describes Surty’s refusal to allow Hlophe to resume work as “unlawful and a threat to judicial independence, which in the course of time will escalate a constitutional crisis”.
It seems clear that the Minister cannot legally suspend Hlophe and the argument by the Minister that Hlophe – who requested the special leave – cannot unilaterally change his mind and return to work, seems tenuous at best. This means Hlophe is in effect suspended. In terms of section 177(3) of the Constitution only the President can suspend a judge and then only on the advice of the JSC and only if the JSC is considering an application to have that judge impeached.
This seems appropriate because one does not want the Minister to have the power to suspend judges, as this might affect the independence and impartiality of the judiciary. What happens if judges are on the brink of making a finding against the government and those judges are suddenly suspended by the Minister? It would constitute an outrageous interference with the independence of the judiciary. The way in which the Minister has handled this matter therefore leaves much to be desired because it creates a precedent for this kind of thing in future.
So, I suspect Hlophe has every right to rock up for work this morning and if he does there would be nothing the Minister can do about it.
One might also have had some sympathy for the argument advanced on behalf of Hlophe that because the JSC has taken so long with considering the complaint, the voluntary special leave is now starting to look like a suspension and is thus detrimental to the Judge President. But of course Hlophe is to blame for the delay as he approached the courts to declare that his rights had been infringed and also asked the court to prohibit the JSC from hearing the case until such time as the court process had been concluded.
The JSC then decided – wisely perhaps – not to continue considering the complaint, fearing that Hlophe’s lawyers would accuse it of infringing his rights. So Hlophe is really trying to have his cake and eat it on this score. He is blaming others for the delay when the delay is due to his threats. When he launched his court action he should have considered the consequences. But in the light of this letter one assumes the JSC can now proceed with considering the case against Hlophe as the Judge President is suddenly anxious to have the matter dealt with and cannot complain if the JSC now deals with it.
That said, I do not see anything stopping the Judge President from returning to work and in some way I would hope he defies the Minister and does just that because it would represent a victory for judicial independence.
Of course, whether it would be wise for him to serve as Judge President while this dark cloud is hanging over his head is another matter altogether. His lawyers wrongly argue that the Minister of Justice had failed to take into account their client’s victory in the Johannesburg High Court last year when it ruled that the Constitutional Court judges had violated Judge Hlophe’s rights when they published untested claims against him before the Judicial Service Commission could hear the matter.
This case in the High Court had no bearing on the guilt or innocence of Hlophe – it was a procedural matter – so should have no bearing on a decision whether he should take special leave or not. The question is whether it is in his own interest and in the interest of the judiciary for him to serve as Judge President when we do not know whether he acted in a scandalously unethical manner by trying to influence the judges of the highest court.
I would say that it clearly is not. The charges against him are indeed extremely serious and if found to be true should surely lead to his impeachment, because it would show that he is a dishonorable man not fit for the bench. There is therefore a very dark ethical cloud hanging over his head and if he now takes part in the running of the High Court before the JSC has either cleared his name or recommended impeachment, it will affect the credibility of the judiciary and will invite litigants to bring various applications to have decisions made by him set aside. This will plunge the judiciary into a new crisis and will also further tarnish the name of the Judge President.
I am therefore surprised that the Judge President cannot see that it is not appropriate for him to return to work. The ethical (as well as strategically wise) thing to do is to sit this out until the JSC finally makes a decision on the merits of the complaint. This would in no way speak to his guilt or innocence, but would rather have shown that the Judge President has respect for the judiciary and is a man whose personal ethical code prevents him from plunging the judiciary into a crisis for short term political and personal gain.
The fact that the Judge President cannot see this, suggest that the Judge President lacks the wisdom and ethical judgment one would associate with a good judge. It will only fuel the animosity against Hlophe amongst many inside and outside the legal fraternity. By throwing his toys out of the cot he is showing that he thinks that he is far more important than the judiciary or our democracy and such action can only make him more enemies – as if he does not have enough enemies already.
Hlophe needs all the friends he can get if he wants to win this impeachment battle. Picking fights with the ANC minister may therefore not be the wisest thing to do. Strategically this move therefore seems rather unwise. Wonder who has been advising him?BACK TO TOP