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)
16 June 2008

We have a real constitutional crisis on our hands

Events of the past week have plunged South Africa into a serious constitutional crisis. News that the two judges of the Constitutional Court who have allegedly been unduly influenced by Judge President John Hlophe have declined to personally get involved in the complaint lodged by the Constitutional Court against Hlophe comes as a great shock and has probably seriously dented the image of the Constitutional Court.

I must say, I am utterly perplexed and deeply depressed by the turn of events.

And now Judge Hlophe has lodged a counter complaint against the judges of the Constitutional Court and Hlophe’s defenders have called for judges of the Constitutional Court to resign because of their handling of the case.

To me it does not seem to make sense. If judge Hlophe tried to unduly influence Justice Bess Nkabinda and acting Constitutional Court judge Chris Jafta, these judges have a constitutional and legal duty to pursue the complaint. They cannot choose not to get involved in the matter for the sake of political expediency. Judges do not have a choice in upholding the Constitution and the law: they are legally bound to report unconstitutional or illegal behaviour by another judge and do not have the luxury of not getting involved.

If there really was cause for complaint and they really do not want to get involved in the complaint, these two judges behaviour are unconscionable and shocking and they themselves are making themselves guilty of the grossest misconduct and are contributing to the serious constitutional crisis.

If, on the other hand, there was no case against judge Hlophe from the start, the leadership of the Constitutional Court have acted in an irresponsible and reckless manner by lodging a complaint and going public with it. It would be very difficult in such circumstances not to conclude that the leadership of the Constitutional Court was motivated by a personal dislike of Judge Hlophe or because of political considerations.

Judge Hlophe, lawyers and commentators are not to be absolved from blame for the present mess. It is ironic that in his complaint lodged with the Judicial Services Commission, Judge President Hlophe argues that the conduct of the Constitutional Court in going public with the complaint was clearly disallowed under the United Nations Article 17 of the Basic Principles of the Independence of the Judiciary. This is the same line of attack used by some of Judge Hlophe’s defenders.

But now the Judge President himself has gone public with his complaint against the Constitutional Court, doing exactly what he complains about. If Judge President Hlophe is correct that it is not appropriate for complaints against judges to be made public, then the same rules should surely apply to him. If he was a man of principle he would not have allowed his complaint to be made public.

I am waiting for all Judge Hlophe’s defenders to attack the Judge President in the same manner for going public with the complaint. After all, if they applied the principle of secrecy consistently, they must be very upset with Hlophe for attacking the judges of the Constitutional Court in public. Unless, of course, the original attack on the Constitutional Court had very little to do with principle and everything to do with a misguided sense of loyalty to a deeply flawed character like Hlophe. Or perhaps defenders of Judge Hlophe are positioning themselves for high legal office in the post Mbeki era and are merely acting out of naked ambition and greed.

I cannot see how the judges of the Constitutional Court can now back down from the complaint. This means that we are in for a very messy fight between a man who in the past has shown scant concern for the truth or for the independence and integrity of the judiciary on the one hand, and the judges of the Constitutional Court who up until know have carefully guarded their integrity and independence on the other.

Either Judge Hlophe prevails – which would strengthen his chances of becoming our new Chief Justice, and would permanently taint the integrity of the Constitutional Court – or the Constitutional Court judges prevail which could fatally taint the integrity of at least one of the permanent members of the Constitutional Court (Justice Bess Nkabinda).

No matter what way this ends, all of us who believe that the Constitution and the highest court empowered to enforce it is our best hope for establishing a society based on democratic principles, the Rule of Law and the progressive values underlying the Constitution, must surely be deeply troubled by the recent turn of events.

The sooner this is dealt with and the more open and transparent the process followed by the JSC the better.

UPDATE: Die Burger reports that a careful reading of the Nkabinda/Jafta statement suggests that the judges are NOT pulling away from their responsibility to pursue the matter but merely that they see this as an attack on the Constitutional Court and feel the Court as a unit should make the complaint. They would then merely act as witnesses in the complaint against Hlophe. If they are willing to act as witnesses in the matter, my harsh questioning of their motives would be premature. If they are, however, reluctant to give evidence, my original  line of questioning would remain valid.

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