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
16 October 2009

Its all a matter of credibility

Members of the Judicial Services Commission (JSC) who read the founding affidavit of Freedom Under Law (FUL) in their application to set aside the decision of the JSC not to properly investigate the complaint of gross misconduct against Judge President John Hlophe, would be hard pressed not to feel ashamed.

Whatever the legal merits of the case presented by FUL, the affidavit builds a strong case that the JSC’s decision was so absurd, irrational and  arbitrary that no reasonable person would have been able to make it. FUL contends that in an effort to avoid a situation where Judge President Hlophe (who has been caught out lying in the past) would have to face cross-examination, it decided – without affording the parties any of the procedural protections prescribed in the JSC’s own rules – that even though a prima facie case existed against Hlophe, the CC judges had not been able to prove during the “preliminary hearing” that Hlophe had unduly tried to influence them.

FUL’s affidavit – although it challenges the unlawfulness of the decision on relatively technical grounds – contains powerful pointers that goes to the substance of the complaint and when one reads it one gets the impression that FUL’s lawyers believe that the JSC should have made a credibility finding against Hlophe. FUL argues as follows in this regard;

In exercising [their] constitutional duty, [the JSC] must apply the law of evidence  regarding the resolution of conflicting factual versions. It is well-established that this requires a determination of the witnesses’ credibility, their reliability and probabilities. The JSC cannot abdicate this responisbility because the complianants and those against whom complaints are made are judges. If it were so, the power given to the JSC under section 177 and its rules would become meaningless whenever a judge denies a charge.

FUL points out that the JSC decision failed to consider crucial evidence which shows not only premeditation on the part of Hlophe, but supports a credibility finding in favour of Justice Nkabinde. It lists the following issues as pertinent:

  • There was a prior warning by Jaftha to Nkabinde that Hlophe was coming to talk to her;
  • There was supporting evidence of Justice Mokgoro and O’Regan (neither of whom testified at the second “preliminary hearing”) about what was said and what happened;
  • The fatal effect (both on credibility and the issue of pre-meditation) of the evidence that Justice Nkabinde had finished and circulated the note on priviledge before her conversation with Hlophe while Hlophe had claimed Nkabinde had said to him she was still busy working on that note;
  • The inconsistent media statements by Hlophe who had at first dismissed the complaint against him as “rubbish” and asked, rhetorically, how he in Cape Town could influence eleven judges sitting in Johannesburg. Hlophe at first did not admit that he had spoken to two judges of the CC about the Zuma matter, something that he later had to concede he did do by approaching each and talking to them in private in their chambers;
  • Hlophe had not provided a possible explanation why Justice Jaftha – a friend of many years – and Justice Nkabinde would manufacture the evidence which Hlophe disputes;

When Hlophe was challenged during his first interdict application to provide answers to the following questions he failed to do so:

  • does he allege that Nkabinde J is lying in her account of what happened;
  • does he allege that Jaftha AJ is also lying in his account of what happened;
  • does he allege that both Jaftha and Nkabinde allowed themselves to be coerced into making false statements against him;
  • does he allege that Jaftha and Nkabinde lied to their colleagues when, on various occasions, they conveyed what had happened between them and Hlophe to them;
  • does Hlophe allege that the other Judges of the CC have lied about what happened.

Instead Hlophe stated that these questions had to be determined at the JSC hearings. because there were no hearings, Hlophe never had to answer these pertinent questions that fatally undermines his credibility.

FUL seems to have a point. The fact that the JSC chose to believe some aspects of Hlophe’s version of events above that of Nkabinde looks in this context astounding and inexplicable. I think FUL has convinced me that no reasonable person with an open mind could possibly have come to such a decision.

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