Quote of the week

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.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
14 October 2008

The Hlophe letter of demand…..

Dear Chief Justice

RE: HLOPHE JM/ LANGA CJ AND JUDGES OF THE CONSTITUTIONAL COURT

We act for Judge President John Mandlakaylse Hlophe herein and address this letter to you as well as all the Judges of the Constitutional Court.

Following extensive consultations with our client in respect of the publication of a media statement dated 30 May 2008 by the Judges of the Constitutional Court we now have the following instructions;

• The publication of the media statement made untested allegations of gross judicial misconduct against our client

• The publication of the media statement of untested allegations of gross judicial misconduct against our client was deliberate and aimed at injuring our client’s personality rights thus forcing him to resign from his position as a Judge of the Republic of south Africa.

• Furthermore a consideration of the media statement of 30 May 2008 leaves “a reasonable person of ordinary intelligence” in no doubt that what was being conveyed to the general public by the Constitutional Court and its Judges was that our client had as a matter of fact sought to improperly influence the decision of that Court in the Zuma/Thint v NPA cases. In this regard we will refer to the response of the various commentators and constituent Bars to the published statement. In particular we point out the response of the Cape Bar Council which issued a media statement congratulating the Constitutional Court judges for their principled position and condemning our client for [allegedly] behaving in a reprehensible way” and characterized his behaviour as “tantamount to an attempt to defeat the ends of Justice”. This interpretation of the media statement of the Constitutional Court judges by members of the legal community who include Senior Counsel of various Constituent Bars, Professors of law from different Universities and our client’s colleagues while unfair was unavoidable. The media statement certainly conveyed the impression that our client had as a fact committed wrongful and unlawful acts and accordingly liable to the disciplinary regime that includes impeachment.

• The media statement further conveyed to the public that our client had violated the Constitution and acted in a manner inconsistent with the oath of office of judges.

The media statement issued by the Constitutional Court judges damaged our client’s dignity and reputation. In the eyes of the legal community and the general public our client is considered as not deserving of the respect or dignity accorded to judicial officers who are appointed to serve as such under the Constitution. Conveying and publishing as fact to the general public untested allegations of Judicial misconduct against our client was reckless and an unlawful disregard of our client’s rights. Without conveying the factual basis for such damaging allegations, it is the only reasonable conclusion that the Constitutional Court judges were deliberately negligent and leveraged on their Judicial status to mobilize vicious and vindictive public views against our client with the sole aim of forcing him to resign from his position as. Judge.

The publication of untested allegations of Judicial misconduct against our client was accordingly wrongful, negligent and injurious to our client’s dignity and reputation as judge. The damaging effect of the publication to our client was not only in South Africa legal community but to the general litigating public and lowered the standing of our client in the eyes of the general public. As a result of the publication, our client is associated with corruption, judicial indiscipline, and lack of judgment and discernment. The damage to the reputation of our client both as a judge, a Judge President, a citizen of South Africa and a human being is extensive and deep. Our client, after an agonizing reflection on the damage done to his reputation has reached the unenviable decision to seek damages from the Constitutional Court and its judges for the violations to his personality rights.

In the result we are instructed to demand, as we hereby do, from yourselves an amount of R10 000 000 (ten million rand) as compensation for the damage caused to our client’s reputation by the wrongful and/or negligent publication of allegations of gross Judicial misconduct against our client.

We are instructed to issue summons and pursue our client’s rights in Court proceedings should the Constitutional Court and its judges refuse to or neglect to pay the amount claimed within 30 days from the date of receipt of this letter.

Yours faithfully

Nongogo, Nuku

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