Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
4 May 2009

The JSC’s Hlophe dilemma

Could Judge President John Hlophe receive a “get out of jail free” card because of a bungling by the Judicial Services Commission (JSC)? The Weekender reported on Saturday that JSC commissioner Mvuseni Ngubane broke ranks with his colleagues in a “dissenting view” on the decision not to postpone the hearing of Judge President John Hlophe, saying one of the factors his colleagues considered was “the possibility that the current commissioners may be replaced” after the elections.

The majority viewpoint was that the hearing should not be postponed because it was “manifestly” in the interests of justice that it proceeded. Hlophe had tendered a sick note, claiming to have contracted a mysterious illness which was so severe that he could not attend the hearing – although the sick note lapsed on the Friday before the hearing started.

It is a sound tactical strategy for the Judge President to try and avoid a hearing, as even on his own version of events he acted in a manner so shockingly inappropriate that it would be difficult for the JSC not to recommend his impeachment because of gross misconduct on his part.

The “dissenting opinion” by Ngubane therefore seems to come as a early Christmas gift for Hlophe and his lawyers. It was of course wholly inappropriate for Ngubane to have publicised this opinion as the deliberations of the JSC are supposedly confidential. I am sure Hlophe, his lawyers and other fans will all issue a stern rebuke to Ngubane for breaching the confidentiality of the JSC which, after all, they have been arguing was sacrosanct.

But be that as it may, any evidence that anyone on the JSC had already made up his or her mind on the Hlophe matter before the evidence could be heard would place the JSC in a very awkward position and might strengthen the legal case for a recusal of the “biased” commissioners. According to The Weekender:

Hlophe’s attorney, Barnabas Xulu, told the Weekender yesterday that Hlophe was “shocked” by Ngubane’s statements and the fact that no one has denied them.“He couldn’t sleep last night,” Xulu says.

He said the “dissenting reasoning has shown an appearance of a strong element of bias, and we will be looking into the remedies available to our client in the circumstances”.

It is gratifying to note that Mr Xulu has such a strong sense of fairness and justice and that he could still be shocked – albeit not by the conduct of his client. But I am not sure these revelations – troubling as they might be – will ultimately assist Hlophe in avoiding  responsibility for his shocking conduct (which admittedly has not kept me up at night, perhaps because I will never have to appear before the honorable Judge President).

One does not know exactly what was said behind closed doors, but if one of the members of the JSC said that the case had to proceed because the JSC might be reconstituted after the election (something I also raised in an earlier Blog) this might arguably show that the person who raised this point was biased against Hlophe. I would imagine it would be better for the JSC’s credibility if this individual immediately offered to recuse himself from the proceedings.

But the JSC did not rely on this reason to proceed with the hearing. Instead the JSC argued – correctly – that Hlophe’s sick note had expired the previous week and that he was abusing the process in an attempt to drag out the process and to avoid the hearing. While one member of the JSC might therefore well have to recuse himself from the proceedings, the rest of the members of the JSC would be competent to continue considering the complaint.

And the sooner they do so the better. This case has been dragging on for far too long and we now need the JSC to act firmly and decisively to prevent Hlophe and his lawyers from abusing the legal process.

It is interesting that Hlophe’s lawyers have stopped making arguments trying to defend their client’s actions and instead are now taking technical legal points to detract attention from the substance of the complaint against him. We will all draw our own conclusions from this turn of events. But I suspect this saga is going to drag on for quite a while because if there is one thing Hlophe cannot afford it is to have to testify in front of the JSC. How on earth will he explain away the fact that he approached two judges of the Constitutional Court to try and convince them to decide a particular case in a specific way?

Better to drag out the process and hope for a miracle down the line. After all, it worked for Jacob Zuma.

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