Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
With so many lawyers in the room, one would have though the Judicial Services Commission (JSC) would have acted in a legally unimpeachable manner when it started hearing the complaint by the Constitutional Court against Judge President John Hlophe. But I suspect there is some legal merit to the most recent application by the lawyers of Hlophe, aimed at stopping the JSC hearing against him.
I am not talking about the silly and self-serving statement in his papers filed in the high court in Johannesburg, in which it is claimed that the JSC’s impeachment proceedings against him had more to do with politics than public interest and justice.
Oh how South Africans love a victim – even one with the ethics of an arms trader or a second rate schoolyard bully. If there is one thing we have learnt over the past few years, it is that if one can convince enough people that one is the victim of some sort of conspiracy concocted by the CIA, unnamed “dark forces”, the Easter Bunny, or the Idols judges, one might just escape having to account for one’s shockingly nefarious behaviour.
I am also not convinced that Hlophe’s lawyers will be successful in persuading a judge that the members of the JSC were biased and had prejudged the factual and legal issues to be decided in this case – merely because some of its members have displayed some impatience with Hlophe and his legal team for dragging out the process in the hope of some miracle down the line that would prevent the JSC from considering the merits of the case.
Let’s face it, if I was Hlophe’s lawyers I would not want the merits of the case ever to become an issue because even on his own version of events he acted in a shockingly inappropriate manner. How on earth will he be able to explain away his chats with two judges of the Constitutional Court?
No, I am talking about the argument – advanced by Hlophe’s legal team – that the JSC committee who proceeded to hear evidence about his attempts to improperly influence two judges of the Constitutional Court was not properly constituted and that the hearings were therefore unlawful.
I have not had sight of Hlophe’s papers, but I did peruse the opinion prepared by Advocate Owen Rogers (SC) on request of the JSC in which he argues – quite cogently – that all the members of the disciplinary committee of the JSC had to be present for that committee to have been legally constituted.
Relying on a precedent first established by the Appellate Division judgment in Schierhout v Union Government (handed down in 1919), the opinion argues that prima facie when a decision is entrusted to a tribunal consisting of more than one person, every member of that tribunal should take part in consideration of the decision.
Obviously, where this was impossible – as was the case when both the Chief Justice and the Deputy Chief Justice had to recuse themselves from the Hlophe matter – this requirement did not have to be met. Neither would it be required where the empowering legislation provided for a lesser amount of members to consider the issue.
But in this case, the JSC Act does not provide for a lessor amount of members to hear a complaint – although it does allow for a substitution of members in appropriate circumstances, So it was probably a mistake for the Minister of Justice at the time to recused himself without nominating anyone else in his place – as legislation empowers him to do.
This means that when the JSC finally started hearing the complaint against Hlophe, it was probably not lawfully constituted.
It is unclear how a court will deal with this matter and if they find that the JSC was not lawfully constituted what remedy they would provide for Hlophe. It seems to me a victory for Hlophe would only provide a temporary reprieve as we now have a new Minister of Justice and as the JSC could always begin hearing the case afresh with the new Minister taking his seat.
So unless there was some kind of deal between Hlophe and President Zuma and the four members on the JSC disciplinary committee appointed by the President are replaced with Hlophe lackeys in order to pave the way for a newly constituted JSC to sweep Hlophe’s misconduct under the table, he will still have to face the music some time or another.
If Mr Zuma does nothing to replace the JSC members, it would signal that he might actually be serious about respecting the Constitution – now that he is President – and I for one would be very relieved and impressed.
However, if those four JSC members are replaced, it would be time to dust off our toyi-toyi shoes because then we would know that Zuma is prepared to rape the Constitution to get back at his perceived enemies. How long then before a liar and shyster is elevated to the highest court in our land?
I for one believe now that Zuma is President, he will do the right thing and that he will not interfere in the Hlophe matter. If I am proven wrong, the honeymoon with President Zuma will, of course, be truly over.BACK TO TOP