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.
One of the striking allegations made in the Constitutional Court complaint against Judge President John Hlophe is that he had told Justice Bess Nkabinde that he had a “mandate” to sway the Constitutional Court in the pending Zuma judgment.
Responding to this allegation African National Congress (ANC) secretary-general Gwede Mantashe yesterday dismissed any notion that Cape Judge President John Hlophe could have received a “mandate” from the party, saying that Hlophe was not a member of any decision-making structure of the ruling party.
The only thing I know is that Judge Hlophe is not a member of any of the structures of the ANC that provide mandates.
This is not good enough. If it turns out that Hlophe had indeed said that he had a mandate, what would be required is to ask Mr Jacob Zuma personally whether he knew Justice Hlophe, how well he knew Hlophe and how many times they have met, whether he had ever spoken about his trial with Judge President Hlophe and whether he had asked him to intervene on his behalf with the Constitutional Court. Mr Zuma should also be asked whether he had asked anyone else to speak to Judge President Hlophe.
Thint could also be approached and asked whether any of their officials knew Hlophe, had met with him and had asked him to intervene.
One would imagine that Judge President Hlophe himself would now have to say whether he told Justice Nkabinde that he had a mandate and if so what he meant by this. He should also be asked whether he knew Zuma, had spoken with Zuma or a representative of Thint, had met Zuma or a Thint representative, had ever discussed the cases under discussion with Zuma or a Thint representative, and whether he had agreed to act on behalf of Zuma or Thint.
Judge President Hlophe should also be required to say whether anyone else had ever approached him on behalf of Zuma or Thint. Unless he is going to claim that he never said this and that Justice Nkabinde was lying, but that would be difficult to pull off because Justice Nkabinde has rather less reason for lying that Hlophe. Or so it seems at least.
Clearly if there was a mandate it would not have come from the ANC structures but from one of the accused parties or one of their representatives. The ANC statement is therefore a red herring. Mr Zuma is the one who has to address this issue. He needs to make an unequivocal and blanket denial that he or one of his representatives have ever discussed the case with Hlophe. Failure to do so, will – rightly or wrongly – create grave suspicions against Mr Zuma and will further tarnish his image.
This is a good opportunity for some door-stop journalism of the E-TV variety. Journalists should ambush Mr Zuma and ask him these questions point blank and see how he reacts. It is him and not the ANC as an organisation that has something to answer for.BACK TO TOP