An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Newspaper reports suggest that neither the Chief Justice, nor Judge President John Hlophe, has decided yet whether they would support a decision by the Judicial Services Commission (JSC) for the hearings on the complaints by the Constitutional Court and Cape Judge President to be held in public. I can very much understand why both parties might find it difficult to decide what would be best.
For the Constitutional Court – and for Justice Nkabinde and Jafta in particular – there are serious risks in a public hearing. The two judges – who were allegedly improperly approached by Hlophe – first declined to lodge individual complaints with the JSC, but then signed on to the Constitutional Court complaint against Hlophe. They will have to give evidence before the JSC and would also be subjected to cross examination from Hlophe’s counsel. (Incidentally, I see Hlophe has retained the same counsel that is representing Minister Stofile and three other politicians fingered in a corruption report by Judge Ronnie Pillay in the Eastern Cape.)
Judge Nkabinde and Jafta will have to explain why they were not prepared to lodge a complaint against Hlophe but were prepared to sign on to the Constitutional Court complaint. Why did they suddenly have this change of heart? Why did they not see that the improper approach by Hlophe was a matter of grave concern? Their judicial ethics will come under scrutiny and they will also be asked if their colleagues had leaned on them to “do the right thing”. This will potentially embarrass them and will also provide ammunition for Hlophe’s defenders who will do everything to detract attention from the substance of the complaint and focus attention on these side issues.
For Hlophe the stakes seem to be even higher. He will be subjected to cross examination and will have to justify all the broadsides he made in his 71 page submission to the JSC. If there is anything in the submission that is not true, he runs the risk of being publicly exposed as a liar and thus of being even further humiliated. He might be grilled on some of his less plausible explanations in his submission – including his claim that when he said he had a mandate he was referring to the fact that the Chief Justice had asked him to chair a meeting.
He will also be grilled on his hints and assertions of bad faith on the part of Deputy Chief Justice Moseneke and will be asked if he has any proof for these assertions and if not, why he made them in the first place. People who are subjected to such sustained cross examination – especially on statements they made that cannot be sup[ported by fact – often come across as shifty and dishonest.
But a public process will also provide an opportunity for both sides to get their side of the story out and will focus the public imagination on the issues they wish them to focus on. Judge Langa and Moseneke will aim to give dignified and ponderous responses to show off their gravitas and explain why the alleged approaches of Hlophe was viewed as an attack on the integrity of the Constitutional Court as a whole and was therefore not something only for the two “complaining judges” to worry about.
They will also be able to respond to the scurrilous and opportunistic attacks on the Constitutional Court by the likes of Paul Ngobeni. And because they both have fine legal minds, I for one relishes the thought of seeing them in action while they demolish the attacks on the Court by the bonsai Rotweiler from UCT and the Judge President.
If Hlophe has spoken only the truth, he would do well under cross examination. And surely he would relish the opportunity to clear his name and to use the public platform to further his political campaign for a job on the Constitutional Court. He could mutter darkly about the forces of evil and the racism in the legal profession (which we all know, still do exist) and could win some friends not only amongst the conspiracy theorists, many of whom seem to adore Jacob Zuma, but also amongst those who support serious transformation of the legal profession.
The thing is, in the end under the glare of cross examination most lies are exposed and those in the wrong often wilt under the pressure of having to keep their stories straight. I would therefore strongly be in favour of a public, televised hearing. It will give the public the opportunity to judge for themselves who are the good guys and who are the crooks in this story. Those who have nothing to fear from the process would also have nothing to fear from an open hearing.
Everyone who recalls the merciless cross examination of Mo Shaik and Mac Maharaj before the Hefer Commission of Inquiry and the way it exposed these two gentlemen as rather flawed and possibly dishonest men, will realise that a public hearing might be the one thing that could begin to restore the badly dented credibility of the Constitutional Court. Either that, or it could restore trust in Judge President Judge President Hlophe if he turns out to be the one who is not lying.
I only have one problem with this whole scenario. If there are public hearings televised on TV, I will have to find an excuse not to go to work to watch every minute of the drama. Oh well, I somehow just know that my appendix will be acting up just about that time.BACK TO TOP