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
24 March 2009

Trying to manufacture figs out of horse manure….

I was rather harshly criticised for saying (only somewhat) tongue in cheek that if I was a judge on the Constitutional Court I would say a little prayer every day that Judge President John Hlophe does not fire his legal team. But if a report on the Legalbrief website is anything to go by, I might have had a point after all.

Lawyers for Hlophe seemed to have had a torrid time trying to explain to the nine judges of the Supreme Court of Appeal (SCA) what the legal basis for their case was. They also seemed to have made arguments not canvassed in their papers, and to have contradicted themselves several times. According to the report by Carmel Ricard:

Ntsebeza contradicted himself on a number of occasions about whether his case was that the Constitutional Court judges acted wrongly in publicising the fact that they had made a complaint to the Judicial Service Commission against Hlophe; or that they acted unlawfully when they referred the complaint against him to the commission without first giving Hlophe a hearing. At one point he was driven to concede that, on the arguments he was then advancing, the High Court should not have made one of its four orders, and that it could not now stand.

Eventually Harms told Ntsebeza that his submissions were inconsistent. And Nugent asked Ntsebeza whether there was ‘any authority, anything, anywhere in the world in which it is said that the making of a complaint requires a prior hearing?’
During the debate between the appeal judges and Ntsebeza, his two juniors tried several times to get his attention to prompt him about other directions to take. At one stage Ntsebeza, obviously stressed, asked for an adjournment. Afterwards, as debate about the exact nature of the argument being advanced by Hlophe’s team became more intense, Ntsebeza eventually asked whether one of his juniors in the case, Thobani Masuku, could take over and argue the matter.

To be fair, Hlophe’s lawyers did not really have a case to start with – they were really trying to convince the nine judges that perdedrolle eintlik vye is (an Afrikaans saying loosely translated as: trying to convince someone that horse manure are in fact figs). And it cannot be fun to be grilled by nine SCA judges ready to point out the absurdities and contradictions in one’s arguments. I am glad I was not required to argue Hlophe’s case and I am sure that the team did the best they could with the legal cards they had been dealt.

For me two aspects of the report are particularly striking. The first is the comment made by Judge Nugent when trying to understand why it could have been unlawful for the Constitutional Court to make public the fact that it had lodged a complaint against Hlophe: “I have difficulty in understanding how reporting something can be unlawful if it is true,” he said.

My point exactly! The judges of the Constitutional Court made public a incontrovertible fact, namely that it had lodged a complaint against Hlophe. How could it have been illegal to make public what was, after all, factually correct and true?

The second aspect that amused me was the argument raised by Hlophe’s lawyers that there is a special duty on judges to act impartially and that it would be unlawful for a judge not to take into account the impact [on the dignity of another judge] of making a public statement before they do so. If I was one of the nine judges and not such a nice guy, I might have asked Hlophe’s lawyers whether they were acting for the applicant or the respondent.

This is because if one follows this argument to its logical conclusion it would amount to an admission of unlawful behaviour on the part of their client. After all, the Judge President has often made scurrilous accusations against fellow judges without affording them a hearing and without considering the impact of his statements on the standing and dignity of the judges concerned.

Only last week permission was granted to Prof Winston Nagan to sue Judge President Hlophe because he attacked the acting judge from the bench – one presumes without affording Nagan a hearing or considering the impact of his statement on Nagan’s dignity. And – unlike the judges of the Constitutional Court – he had not even lodged a complaint with the Judicial Services Commission (JSC) against Nagan and did not limit his statement to a factual description of that complaint.

Hlophe has, of course, also attacked the judges of the Constitutional Court in the most vehement fashion without affording them a hearing or considering the impact of his statements on their human dignity and standing. At least he did so while also lodging a complaint with the JSC against the judges of the Constitutional Court. But once again, his attacks on the Constitutional Court judges were not limited to an obviously true statement of fact, namely that he had lodged a complaint against the judges of the Constitutional Court. Instead he accused the judges of the Constitutional Court of ulterior motives and in his statement deliberately tried to undermine their credibility and dignity.

The double standard is thus so breathtaking that I almost have to admire the man for his chutzpa. Here he is fighting a case and complaining about the behaviour of the Constitutional Court judges while he has done much, much, much worse on more than one occassion. It is like complaining about a neighbour for playing Celine Dion records until 9 pm every evening while running a brothel from one’s own house.

I am tempted to point out that this attitude, which seems to suggest there should be one rule (or no rules at all, really) for him and an entirely different set of rules for the rest of humanity, is not unlike the attitude of Jacob Zuma towards the rights of accused persons (or as Zuma calls them: “criminals”). But one does not know whether the Judge President associates  himself with the warped values of the ethically challenged President of the ANC, so it would be unfair to suggest that he has.

Better to stick to the law and the facts, which at this point seems pretty clear to all – including, it seems, the hapless lawyers representing Judge President Hlophe.

2015 Constitutionally Speaking | website created by Idea in a Forest