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.
I see, from far off in politically calm Berlin, that Judge President John Hlophe`s representative has issued a statement on the High Court judgment finding that his rights were infringed by the way the Constitutional Court lodged a complaint against him, but that the JSC still had the right to consider the complaint. He argues that the integrity of judicial office and the judiciary was restored by this judgment.
Extracts from this most unfortunate statement with some preliminary comments follow:
This is a landmark victory in our continuing struggle to strengthen the institutions of our young democracy and to hold persons, including judges of the highest court in the land accountable for their actions which infringe on citizens’ rights. This ruling is a wholesale refutation of unchecked political and executive manipulation of the institutions of our democracy including the court for partisan political ends.
It is a pity that the Judge President – or his representative – feels emboldened by the judgment to argue that the Constitutional Court acted “for partisan political ends” without providing any proof or any pointing to amy references in the actual judgment to this effect. Of course there is no such proof and neither are there any such passages in the judgment. By making unsubstantiated and wild allegations about the political motivation of the judges of the Constitutional Court, the statement by Judge President’s representative undermines the integrity of the judiciary that he claims to want to uphold.
The statement deliberately misconstrues the judgment to score cheap and completely unwarranted political points, thus undermining the integrity of the Judge President as well as that of the Constitutional Court judges. To me this would have been unacceptable coming from a politician. Coming from a judge – or his representative – it shows a shocking lack of integrity and character and an unforgivable disregard for the integrity of the Constitutional Court. It is thus an ill-advised and intemperate claim to make and does not befit the office of a judge. It makes the claim in the statement about concern for the integrity of the judiciary ring hollow.
The JP then continues and argues that:
The suggestion [by some commentators like Adv Paul Hoffmann] that the JP’s victory is hollow represents a wish of persons who have made it a pastime to attack, particularly black judges and our judicial institutions. The reckless political interests in conveying to the world that a finding by the Court that a citizen’s constitutional rights have been violated by the Chief Justice and 12 Judges of the Constitutional Court is hollow represents a backward understanding of our new legal order. It smacks of the racist thinking that gave legitimacy to gross violations of fundamental rights of millions of South Africans by the apartheid regime and must be rejected.
If the Judge President is trying to say that the finding of the majority was an important and even momentuous moment in South Africa’s legal and political history, he is of course correct. A finding by a lower court that the judges of the highest court in South Africa have violated the rights of one of their fellow judges is unprecedented and presents a particularly difficult challenge for our legal system.
The JP’s argument that his rights were infringened was accepted by the High Court and thus places the whole Constitutional Court in the dock. Without, of course, making any finding about the motivations for this “infringement” as wrongly suggested by the statement.
But the fact remains that the complaint against Hlophe will continue, so this is NOT, I repeat NOT, a complete victory for the Judge President, as he will still have to answer to the JSC for the alleged gross misconduct charges levelled against him by the Constitutional Court judges.
Pointing this out might not be palatable for the honourable Hlophe, but it remains a fact and cannot be wished away with references to allegations of racism. It also does not detract from the finding by High Court in favour of Hlophe, of course and in this the statement is correct. But some of us are part of the reality based community and have every right to analyse the judgment and comment on the possible consequences – legal and otherwise – of the judgment for Hlophe and for the Constitutional Court’s complaint.
When one is a lawyer or a judge one surely has a duty to analyse a judgment and to deal with the consequences of a judgment not based on what one wished the judgment said, but on what the judgment actually did say. To brand all comments that do not conform to the what the Judge President might have wished the judgment said as racist, represents a rather muddled kind of thinking and demonstrates an inability to deal with, well, how shall I put it, REALITY.
I wonder whether the person who drafted this statement has not learnt a trick or two from Julius Malema about how to try and intimidate the media and the elites that might want to continue to ask awkward questions about one’s ethics or lack of ethics – as the case may be. All in all, this aspect of the statement is not judicious, nor can it be squared with the dignity of the office of a judge. As they would say at the United Nations, this aspect of the statement must be deeply regretted.
A little bit further on in this statement, it is argued that Hlophe’s constitutional rights continue to be violated by the “reckless comments aired publicly by persons who pose as champions of our human rights in South Africa” and then continues:
He has never sought to forestall any proceedings either before the JSC or anywhere but the violation of his constitutional rights. He will continue fighting for the protection of his rights under our Constitution. The allegations that the JP sought to avoid the JSC hearing is devoid of any merit and is allowed to take prominence in the media to deflect the public from admiring the Court’s boldness in vindicating his constitutional rights.
It is with sadness that I have to report that this part of the statement is not in accordance with the facts. Anyone who has read the papers lodged by the Judge President in this case or has read the majority judgment knows that one of the requests made in these papers was for the JSC process to be interdicted and declared unlawful so that the complaint would not go ahead. The majority judgment explicitly deals with this request before rejecting it. This part of the statement is therefore, unfortunately, not true. In English we call this a lie.
Goebels, I believe, once said if one was going to lie and that lie was going to be believed by ordinary people one had to make the lie so big and bold that it would seem impossible for anyone not to believe the lie. The lie in this regard falls into that category. Pointing this out might not be very popular and the Judge President and his representative might well argue that pointing to the lies of a black person is racist. However, it is not. And it remains a lie.
The question now represents itself: did the Judge President approve the issuing of this statement? If the answer is yes, he approved the issuing of a bare faced lie. If this was the case, as one must assume it is, another question arises, namely, should a person who is prepared to lie so brazenly be allowed to continue as a judge in South Africa or any other country in the world?
My humble submission would be that such a person is not fit to be a judge. But maybe I am just saying that because I am one of those nasty racists who (still) believe the truth matters – at least most of the time.BACK TO TOP