Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
28 July 2008

Verbosity masquerading as erudition

It would be tempting to dismiss the submission by Paul M Ngobeni (B.A. magna cum laude) to the Judicial Services Commission (JSC) regarding the Constitutional Court complaint against Judge President John Hlophe as hogwash on the basis that he is facing charges of forgery, larceny and unauthorised practice of law in Connecticut, was suspended as a lawyer in Connecticut, Massachusetts and New York and by the US Department of Justice and is being sought by the Bail Bondsman and listed as a fugitive from justice.

But that would not really advance the debate on the issue of the Constitutional Court complaint or deal with the substantive issues raised by the Ngobeni document. So I waded through his document – although it was hard work because much of it is verbosity masquerading as erudition – to see if he might not have a point in attacking the judges of the Constitutional Court.

The high water mark of the submission is an argument that the Constitutional Court judges erred in making public their complaint against Judge President Hlophe. Ngobeni quotes extensively from US, Canadian and other common wealth jurisdictions to bolster his argument. I must say, he produces an impressive list of authorities for the proposition that the Judicial Services Commission (JSC) should be careful about making details of complaints against judges public – at least at the initial stages of their investigation.

There are, however, two problems with this argument as it relates to his attack on the Constitutional Court.

First, he seems to wrongly suggest (without saying so explicitly) that section 39(1) of the Constitution requires South African courts and tribunals to follow international law and foreign case law. As anyone with even a cursory knowledge of the South African constitutional jurisprudence knows (hint: read the section on minimum core obligations in the Grootboom case) section 39(1) requires South African courts to consider international law and allows them to consider foreign law but does emphatically not require them to follow international law or foreign case law.

Second, the sources all seem to relate to the need of the body hearing the complaint – that would be the JSC in South Africa – to deal in a circumspect manner with complaints against judges and not to open up their examination of complaints at the initial stage to the public. None of the sources actually say anything about any need for a complainant in a case against a judge to keep his or her complaint confidential.

Running like a golden thread through the submission is an assumption that the Constitutional Court and the JSC are basically the same body and are bound by the same rules. In other words, he conflates the complainant with the adjudicator of the complaint. This is because he argues that when the judges of the Constitutional Court laid a complaint it acted “as a Court”, making a judicial finding that will, in effect, bind the JSC.

I find this line of reasoning extremely insulting to the JSC. It undermines the JSC as constitutionally mandated body and really charges that the JSC would abdicate its constitutional responsibility to adjudicate the complaint to the Constitutional Court. He cannot point to any actions the JSC might have taken to prejudge the matter or to indicate that it would feel itself bound by the Constitutional Court’s decision to lay a complaint – which he treats as a finding by the Court of the guilt of the JP. This argument is therefore without merit. (But I never practices law in the US, so maybe I am missing something very obvious that is not to be found in his submission or hidden in the torrent of words.)

Another interesting section of the document argues that the complaint does not state a prima facie case against the JP because the JP was merely exercising his freedom of expression when he allegedly tried to improperly influence the judges of the Constitutional Court and was therefore merely taking part in private discussions with other judges which is part of the give and take of the judiciary in any country. He goes as far as saying:

If he [a judge] is guilty of gross misconduct that has no bearing at all on the carrying out of or fitness for judicial office, such misconduct will not be a ground for a determination by the JSC.

Judge Jafta, so the argument goes, was merely using the JP as a sounding board and the requirements for judicial collegiality and the need for judges to take part in robust discussions with each other on cases, mean that it was perfectly acceptable for the JP to approach two judges of another – higher – court and forcefully trying to convince them to decide a case before them in a certain way.

This argument sounds quite plausible, but if one studies the sources cited a bit more closely it becomes apparent that it is flawed. The case law referred to deals with the ability of colleagues of the same court to discuss cases with one another. None of the cases deal with a case like the present one, where a judge of a lower court is alleged to have contacted judges of another – higher – court to allegedly try and discuss and persuade them to decide a case in a certain way.

It is obvious why it is inappropriate for a judge from a lower court to discuss with judges from a higher court – let alone try and influence such judges – on a pending case. This would mean any judge in South Africa could pick up the phone and speak to the Chief Justice and try and convince him that his court should deal with a certain legal matter in a specific way. It also contradicts a recent report from the International Bar Association on the Judiciary in South Africa which states:

Judicial independence is commonly described as being comprised of two components – the individual independence of judges and the institutional independence of the courts. Individual independence refers to the requirement that judges decide cases independently and impartially ‘on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason’. This independence not only refers to external influence but also to influence from other judges themselves.

If the allegations by Jafta and Nkabinde are true and the JP spoke about a “mandate” and said that the judges were “our last hope”, this would constitute a clear interference with the independence of the judiciary. But this issue of what constitutes ethical behaviour on the part of a judge is probably not Dr Ngobeni’s specialty – given his own troubles in the USA – so he might not have grasped this rather basic point.

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