As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
While I was out of the country, a report appeared in the newspaper suggesting that the Minister of Justice was on the point of brokering some sort of deal between Judge President John Hlophe and the judges of the Constitutional Court.
The alleged deal would require the Constitutional Court judges to drop their appeal against the legally absurd and factually incorrect decision of the High Court against them, while the complaint against Hlophe would be dispatched with in some innovative way – perhaps by getting Hlophe to retire with a golden handshake.
Such a deal would be bad for the legitimacy of the judiciary in general and the Constitutional Court in particular and if what I hear is correct, the Constitutional Court judges would have none of it. And rightly so.
It is imperative for our judiciary that the Supreme Court of Appeal (SCA) overturns the shockingly absurd decision of the High Court and vindicates the judges of the Constitutional Court. The decision was not only legally untenable it was also based on a factually incorrect premise.
It found that Hlophe’s rights were infringed by the judges of the Constitutional Court because they made the complaint against him public before formulating a comprehensive complaint against him. He thus stood accused without knowing what the charges were against him.
But on the day the story broke Hlophe was asked for comment and he knew EXACTLY what the complaint was, as he denied everything to the media saying to a reporter that the allegations were “utter rubbish” and that he had not approached anyone. As is his habit when accused of wrongdoing, this first statement made by Hlophe (before he spoke to his lawyers) was a bald faced lie.
It was only months later that he recovered his memory and admitted that he did indeed approach two judges of the Constitutional Court, that he did indeed try and convince them to decide the Zuma matter in a certain way, but that this was somehow not wrong. This is a bit like admitting to stealing but arguing that it was ok because people do it all the time.
So even on the facts before the court, the decision of the High Court could never stand and will be overturned on appeal. I think even Hlophe and his hapless lawyers must know that the chances of this happening is about 99.9%, so I assume they are the ones floating the rumours about a deal.
It is also imperative that the Judicial Services Commission (JSC) deals with the complaint by the judges against Hlophe forthwith and that it recommends that he be impeached. I am saying this not only because Hlophe has now been caught out lying several times, but also because even on Hlophe’s own version of events (which might or might not be completely truthful), he is a disgrace to the judicial profession and he cannot continue serving as a judicial officer in South Africa if there is to be any respect for the judiciary in this country.
I suspect Hlophe and his lawyers know this very well and that is why they have been trying to manufacture some sort of crisis. Anything to change the topic and not to talk about what actually happened. They are clearly trying to bully the other role players to try and ensure that the case against him never gets heard and the appeal is not dealt with.
But as the Constitutional Court judges point out in their papers before the Supreme Court of Appeal (SCA), the only constitutional crisis is of Hlophe’s own making. He has run to the courts with his absurd complaint in an attempt to change the topic and make people forget that even on his own version of events the Judge President tried to improperly influence judges of the highest court in the land to rule in a specific way in a politically loaded case.
The judges of the Constitutional Court point out in their papers that if the SCA decides in the Constitutional Court’s favour – which it surely must – the JP is free to appeal to the Constitutional Court, and then to ask for a recusal of the judges, in which case the decision of the SCA will stand. So, no crisis.
And besides, according to the CC judges, Hlophe brought this on himself because he chose to go the court route rather than leaving it to the JSC to decide.
For Hlophe JP now to complain that he would not get a fair hearing before the Constitutional Court should the present matter go on appeal, is analogous to the accused who threatened to physically attack the presiding judge and then complained that … the judge would be biased.
No, Hlophe has done enough damage to our democracy and to the judiciary and the sooner the JSC deals with him once and for all, the better. He is a disgrace to the legal profession and must be impeached. The sooner the better.
Letting him off the hook will further weaken respect for the Rule of Law as it will send a signal that some judges like Hlophe are above the law. This cannot be allowed to happen.
The sooner the JSC dispenses with Hlophe and the sooner he is impeached the better. And the sooner the SCA dispenses with the monstrosity that was the majority judgment in favour of Hlophe in the High Court the better. So, please Minister, please judges of the Constitutional Court: do not make a deal with this man.
Our Constitution and our democracy is too important to be held hostage by such a scoundrel.