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.
Judge President John Hlophe’s lawyers argued this week that there was a fundamental inconsistency between his treatment and the treatment of the judges of the Constitutional Court. While he – who has not been found guilty of anything – was asked to step aside, the judges of the Constitutional Court who were found to have breached his rights have not.
I find this argument absurd and displaying a shocking and incomprehensible moral depravity. No wonder the Judge President is in so much trouble and is burning his bridges even with those who used to support him. Does he have NO understanding of what judicial ethics is all about, or is he just brazenly throwing out arguments without actually believing in them in the hope of garnering the sympathy vote from a non-suspecting public who likes to back an underdog?
So let me explain to Hlophe and his lawyers how the Judge President’s alleged actions differ from that of the judges of the Constitutional Court.
Judge President Hlophe is being accused by 14 judges – all having sat or continue to sit on the highest court in South Africa! – of having unlawfully attempted to influence them to decide probably the most high profile politically relevant case in South Africa’s history in a particular fashion and that he did so in order to advance his judicial career.
If these charges are true, the Judge President would be guilty of gross misconduct of the highest order. If true, he would be a disgraceful, unethical, self-serving, crook and an enemy of justice and the judiciary. If true, no decent person should really would want to be seen in his company – ever again. Of course, maybe the fourteen judges are lying. Or maybe they misunderstood what the Judge President did and what his intentions were. In that case, the judge would be innocent and his name would eventually be cleared.
Who knows where the truth lies? What we do know is that 14 very credible and serious individuals without any apparent malice or hidden agenda have charged that the Judge President is a deeply unethical man, a man with the honesty of a snake oil salesman or a gospel preacher. For the ordinary person it would be very difficult not to feel uneasy about such a man continuing with his duties as leader of one of the busiest courts in South Africa until his case has been decided one way or the other.
To continue with his duties would be to cast a dark cloud over the credibility of the work done by that court and would bring the judiciary into disrepute – regardless of whether the Judge President is actually guilty or not. This is because trust in the judiciary – on which the whole system is built – is not only based on facts but also on perceptions. And right now, rightly or wrongly, there is a very strong perception out there that at the very least Hlophe JP has a case to answer and that there is reason to suspect that he might be a crooked judge.
That is why it is absolutely imperative that the JSC promptly gets to the bottom of these allegations. That is also why it is not ethically acceptable for the JP to sit on the court while the cloud is hanging over his head. Judges operate on trust. Where that trust has been severely damaged – as it has been because of these charges – then it is ethically required of the judge involved to step aside until the matter is resolved. The fact that Hlophe cannot see why this is required, further taints his reputation and suggests that regardless of whether the charges are true, he really does not have a sufficiently firm grasp of judicial ethics.
The Constitutional Court judges on the other hand was found by a lower court to have breached the rights to dignity and equality of Judge President Hlophe because they announced the existence of a complaint against him before formulating the charges against him in detail.
Even the majority of the High Court did not find that this was done with any ulterior motive or malice or to gain any personal advantage. It was clearly done with the best of intentions – to safeguard the integrity of the judiciary. Even the majority of the High Court did not find that the CC judges breached the rights of the JP because they made the charges public. They merely found that the timing was off and that the CC judges should have waited a few days before making the complaint public.
If the Constitutional Court judges had acted as “a court” (as Hlophe and his lawyers had initially argued) these findings by the High Court would have been irrelevant and would have been no more than the brandy and coke opinions of some lower court judges reserved for the braaivleis fire talk. This is because it is the Constitutional Court – when it sits as a court – that ultimately decides what the Constitution says and how correctly to interpreted the rights contained in it.
It so happens that in this case, acting as individuals, they had a different interpretation of the Constitution and the rights involved than three of their junior colleagues. They have not been found to be crooked, unethical or self-serving in getting to this different interpretation. They have been found – on the interpretation of some junior colleagues – to have gotten their timing wrong and thus to have breached the rights of the JP to know the charges against him in order to defend himself.
So, on the one hand we have allegations that – if it were to be true – would have to lead one to conclude that the accused is a crook. On the other hand we have a finding that on a specific interpretation of the law, the judges of the CC got their timing wrong, thus breaching the rights of a fellow judge. The former – if true – would amount to scandalous abuse of power. The latter amounts to a mistake about the specific interpretation of the law. To equate these two situations – as Hlophe’s lawyers seem to do – displays a chutzpa and a lack of moral clarity that is breathtaking, to say the least.
To understand the position of the CC judges, consider the following scenario: Imagine the CC judges were sitting as judges in the High Court and were asked to determine the rights of an accused with reference to certain sections of the Constitution. They find that the rights of the accused, on their interpretation, have not been infringed. On appeal, the (imaginary differently constituted Constitutional Court) found that the 14 judges had erred in their interpretation of section 9 and 10 of the Constitution and that the rights of the accused had been infringed.
This happens every day in South Africa. Decisions by judges about the interpretation of rights are overturned on appeal all the time. Such findings by higher courts do not in any way reflect on the morals or ethics of the lower court judges involved. Such lower court judges would not in a hundred million years be considered to be in breach of their judicial oath and any complaint to the JSC would be laughed away as absurd, illogical and (if entertained) dangerous.
Yet this is what Hlophe and his lawyers seem to want to argue by equating his very serious ethical and legal predicament with the situation of the judges of the Constitutional Court. I find it preposterous and absurd and displaying a shocking lack of understanding of what constitutes ethical behaviour. I am surprised that Hlophe and his lawyers concocted such a rubbish argument and seriously question their motives for doing so.
Really, it deeply angers me that those who are charged by the Constitution to uphold the Constitution and the law could steep so low. They should be ashamed of themselves. This does not make me a person who hates the Judge President (or his lawyers). It does make me a person who is very, very angry with the Judge President. It makes me a person who is beginning to wonder whether the Judge President has the requisite moral compass required to continue serving as a judge in our beautiful democracy – regardless any finding of the JSC in the CC case against him.BACK TO TOP