Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
30 May 2008

John Hlophe MUST be toast… or else we are living in a banana republic

The allegations made by judges of the Constitutional Court that Judge President John Hlophe had improperly tried to influence them in their decision in the cases brought by Jacob Zuma and Thint arms company to declare invalid search and seizure operations of the NPA, are so grave that the JP must immediately step aside.

To try and influence judges of a higher court in a case of this magnitude is a clear impeachable offense and there is NO WAY in which the Judge President can possibly continue in his post. He must surely resign or at the very least be placed on leave. It is a grave situation because one cannot possibly imagine that the judges of the Constitutional Court who made the statement are lying. If they were the liars they would surely face impeachment themselves.

According to the Mail and Guardian a reporter of Cape Talk spoke to Judge President Hlophe who denied everything. “He did deny it in the bluntest of terms and said he never approached anybody,” according to the radio. This would mean it is the word of eleven judges of the Constitutional Court versus one judge of the High Court. If it is correct that he denied ever approaching anyone of the Constitutional Court, he is in effect saying that they are all lying and he has painted himself in a corner.

A cleverer person would have said he spoke to some judges but they misconstrued his approach. But a straight out denial – done in the heat of the moment after being confronted by a journalist – has painted him into a corner he cannot possibly get out of now. Either the Constitutional Court judges are lying or he is lying.

I know who I will believe – not the judge driving the Porsche. I hereby officially declare the Judge President a liar and a crook. He can always sue me if he thinks that I am being unfair.

What is needed now is for the Minister to ask the JP to go on leave immediately and for the JSC to begin an investigation into this matter within the next week. This cannot be allowed to fester anymore. If the Judge President continues to deny that he ever approached anyone on the Constitutional Court, he must be told by his friends and allies that his position has become untenable and that he should resign to prevent impeachment proceedings against him.

If he fails to resign and if the JSC fails to take action against him, the JSC would really be saying that the judges of the Constitutional Court made this up and this would plunge us into a Constitutional crisis of the gravest kind. Even the JSC cannot protect Hlophe this time. I will take a bet on that Judge Hlophe will either resign or be impeached (a bet of one month of my salary, say) because if the JSC fails to act (in the event of Hlophe not resigning) our constitutional democracy would be fatally undermined in a way that would be personally devastating for me.

Of course, the fact that he is alleged to have tried to influence judges on the Zuma/Thint case is even more shocking. Can it be that Thint bribed him to try and use his influence with some of the judges to have a favourable outcome in the case? Or did some Zuma supporter whisper in the JP’s ear that if he could swing this one he could become Chief Justice? Or – surely unthinkable – did pro Thabo Mbeki forces try to use the JP to influence the Constitutional Court in the other direction?

These options all seem so bizarre and disturbing that they are almost impossible to contemplate. And yet, and yet. It is inconceivable that the judges of the Constitutional Court would make up something like this and it is also inconceivable that the Judge President would have approached the judges of the Constitutional Court without having been asked by someone, somewhere, to do so in return for some favour. This is of course a prime case for the Scorpions to see if he was bribed. Pity they are being abolished by the friends of Jacob Zuma.

The other question is of course how the Judge President could have been so stupid. Did he really think that he could raise this matter with judges of the Constitutional Court and that they would not report him? I am so shocked I am almost speechless.

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