Quote of the week
Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
Shocking Hlophe judgment
I just heard that five judges of the High Court in Johannebsurg ruled in favour of Judge President John Hlophe. It ruled that the Constitutional Court judges indeed violated Hlophe’s rights when they made public statements about his alleged interference in the case against ANC leader Jacob Zuma. The high court found that the Constitutional Court’s lodging of a complaint with the Judicial Service Commission (JSC) also violated Hlophe’s rights.
I am utterly gobsmacked by this ruling. Although I have not read the reasons given by the Court, I have read the papers lodged in this case and all I can say – let me choose my words carefully here – is that the outcome of the High Court’s judgment is absurd and bizarre. The judges who signed on to this judgment obviously do not have a firm grip on the Bill of Rights as interpreted by the Constitutional Court, on international legal precedent or on common sense – otherwise they could never have ruled in Hlophe’s favour.
I am not saying this because I have an axe to grind with the Judge President. Although we already know that he is ethically challenged, having taken more than R500 000 from Oasis and then doing favours for them, this was a new case and we should not judge him for his previous display of an utter lack of integirty when we judge this case.
However this application was based on the absurd premise that because the judges of the Constitutional Court laid a complaint against Hlophe jointly they should have given him a hearing because they acted as “a court”.
But this argument can only be sustained if one views the complaint by the Constitutional Court judges as a kind of judgment. If they gave judgment against Hlophe they would indeed be constitutionally required to give him a hearing. But laying a complaint could not possibly be viewed as “a judgment”, as the Judicial Services Commission is the body tasked with adjudicating complaints against judges – not the Constitutional Court. The Court therefore had no jurisdiction to make any judgment – even if they wanted to.
Moreover, thirteen judges (which included two acting judges) laid the complaint with the JSC, but the Constitutional Court only has eleven members and can only act legally as a court if they have no more than eleven judges sitting in a case. When thirteen judges act together they can therefore NOT act as a Constitutional Court and they cannot possibly be required to giove Hlophe a hearing before laying a complaint.
I will have to study this judgment further before I can expose this absurd legal charade in more detail. But for now I am utterly stupified, shocked and deeply worried about our judiciary for handing down such a judgment. Most respectable lawyers laughed out loud when they heard what kind of arguments Hlhophe was putting up before the High Court. Not one respectable Constitutional Lawyer I spoke to even wanted to entertain these arguments seriously. People just rolled their eyes as if to say: you know lawyers sometimes make crazy and laughable arguments but one cannot stop someone making a fool of himself.
The Constitutional Court must obviously appeal this case to the Supreme Court of Appeal because it should NOT be allowed to stand.
