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.
It turns out that Judge President John Hlophe has not always believed that it is unacceptable to issue press statements about the lodging of a complaint against a judge with the Judicial Services Commission (JSC). Hlophe approached the High Court earlier this year after the Constitutional Court judges went public with its complaint against him and asked the Court to declare that the lodging of the complaint was “unlawful and legally incompetent” and that his rights to dignity, privacy, equality and a fair hearing had been infringed.
In his majority judgment, Deputy Judge President PM Mojapelo found that the judges of the Constitutional Court had indeed infringed on his rights to dignity, equality and a fair hearing because of the haste with which the judges made public their complaint and their failure to afford him a hearing before lodging the complaint and going public with it.
But eight years ago, when Hlope was already Judge President of the Cape High Court, the ANC lodged a complaint with the JSC against a fellow judge and immediately issued a press statement about it without affording that judge a hearing or providing that judge with details of the complaint. However, at the time, Hlophe did not come to the defense of his colleague.
The complaint was lodged against Judge Dennis Davis by six senior ANC leaders, including the then Provincial Secretary Mcebisi Skwatsha. The ANC then immediately released a press statement about the complaint, arguing that Judge Davis had made comments during a murder trial that violate the rights of the ANC members to be presumed innocent; that were defamatory; and that were not justified on the evidence before the honourable judge.
Davis convicted an individual for the murder of former South African National Civic Organisation chairperson, Milton Mbewana, and the Democratic Party leader in the KTC informal settlement, Nomhle Gexu. The state had argued that the man had not acted alone but was part of a gang of murderers. Six ANC members – including Skwatsha – were arrested in connection with the murder but were later released because of a lack of evidence.
During sentencing, Davis criticised the Prosecuting Authority because it had failed to bring the other members of the gang to book. Some media reports assumed that Judge Davis had referred to the six ANC members – although he had not referred to them specifically – and the ANC members were rather upset by this and lodged the complaint against the judge.
In the end the complaint was not pursued because it was clear the ANC had lodged the complaint based on faulty media reports. At no stage during this saga did Hlophe come to the defense of Davis, who had to fend for himself.
This saga suggests again the strange nature of the majority judgment in the Hlophe matter, as its logic would have precluded the ANC members from issuing a press statement on the complaint – even though they had felt defamed by press reports about Davis’ comments at the time.
Having re-read the papers in the Hlophe case as well as the judgment I am also struck by the fact that Deputy Judge President Mojapelo seems to have based his argument on facts clearly refuted by the judges of the Constitutional Court. The outcome hinged on the haste with which the Constitutional Court judges had gone public and the lack of information in the original media statement and complaint, as it was argued that Hlophe’s rights were infringed because he was unable to defend himself.
But on the same day on which the complaint was made public, Hlophe had denied ever approaching judges of the Constitutional Court on the Zuma matter and had also denied that he had tried to influence them – although, even on his own version of events, this turned out not to be true. He offered the curious explanation that a judge in Cape Town would not be capable of influencing judges sitting in Johannesburg – as if we were living in the time of ox wagons and it would not have been possible for him to hop on a Kulula flight to Joburg at the drop of a hat.
Hlophe therefore did known exactly what he was being accused of and had actually offered a defense. – although the defense turned out not to be plausible The Mojapelo judgment ignores these facts – as it has to – in order to find that Hlophe’s rights have been infringed. It will be interesting to see what the Supreme Court of Appeal makes with this clear contradiction during the appeal.
In any event, it is clear that Hlophe only started cherishing the rights of judges who stand accused of wrongdoing once he himself was in the dock and others started suggesting that it might divert attention away from the seriousness of the complaint by attacking the legality of the complaint on technical grounds. At best it shows a disregard for the well-being of a coleague, and at worst it could show the opportunistic machinashions of a man who is indeed in serious trouble – even on his own version of events.BACK TO TOP