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
1 April 2009

What is going on with the Hlophe case?

I am really worried about the health of Judge President John Hlophe. He seems to have contracted the same virus many of the weaker students fall prey to just before a test or an exam. It must be really serious if he cannot even get on a plane and attend a hearing that will decide whether he is guilty of gross misconduct and should be impeached. Maybe he is even at deaths door like Schabir Shaik. The Minister of Health should call an urgent meeting to deal with this health crisis because as I know all too well from my experiences as a lecturer, this virus is highly contagious and if not stopped it might wipe out a whole generation of shirkers and shysters – and who will then run the country?

But seriously, I am at a loss to understand the legal and political strategy employed by Hlophe and his legal team. Now that he has fired the previous bunch of pedestrian lawyers and hired a really good lawyer by the name of Vuyani Ngalwana – probably the sexiest advocate in South Africa – I would have thought that he would have jumped at the chance to expose those lying, conniving, counter-revolutionary judges who fabricated this whole case against him because they are in the pockets of the CIA, Thabo Mbeki, the Illuminati, the NPA, the Dark Lord Sauron, or perhaps, just perhaps, their conscience.

(By the way, I am not sarcastic about the qualities of Advocate Ngalwana – this guy was brilliant as the Pensions Fund Adjudicator and I had dinner with him once or twice where he displayed charm, a dizzying intellect and original mind of the first order. The fact that he is very pretty might have influenced my judgment slightly – but not that much.)

Not being privy to Hlophe’s legal and political strategy, it is difficult to understand why he is trying to avoid the JSC hearing at all cost. Today his lawyers threatened the JSC with an urgent interdict if it proceeded with the hearing and offered a litany of utterly spurious “complaints” about the hearing. For goodness sake, after the Supreme Court of Appeal (SCA) has dispatched with his argument that the Constitutional Court judges should not have made the complaint against him public, they dredged this up again as one of the reasons for a postponement.

Surely, astute and clever lawyers like Hlophe and Ngalwana know that the SCA has now rejected this argument and that no appeal is possible to the Constitutional Court, so no matter how much they whine on about this, the law does not support them and now never will. Enough already! Stop flogging a dead horse!

They also complained that Hlophe had been selected as a witness before the JSC without being consulted. They are thus equating the hearing before the JSC with a criminal trial and are demanding the same kind of treatment as an accused in a criminal trial. But the JSC is not a court and the same rules applying to a criminal trial do not apply (and should not apply) to the JSC hearing.  The JSC process is aimed at getting at the truth (something Hlophe has shown a certain lack of respect for in the past) and Hlophe’s evidence is obviously crucial for getting to the bottom of this. In any case, even in a criminal case any lawyer would have advised Hlophe that given the overwhelming evidence against him, he would have no option but to testify. I am sure Hlophe and his lawyers know this very well.

So what’s up? Why make absurd and legally embarrassing claims about the “unfairness” of the process when they know they have no snowballs hope in hell of convincing any decent lawyer of their argument?

Dare I say that all these shenanigans suggest that Hlophe and his lawyers are getting desperate. In the light of the finding of the 9 judges of the SCA that an attempt to influence fellow judges on a case before them constituted a breach of the Constitution and the law, and given the fact that Hlophe had admitted that he discussed a pending case with two of the judges of the Constitutional Court and argued with them about the “correct” way to decide the case, this leaves Hlophe in an extremely vulnerable position. Remember, he had claimed that it was perfectly normal for a judge from a lower court to discuss a pending case with judges of a higher court and that there was nothing wrong with him telling them that “we depend on you” to rule in the “right” way in the pending case.

Legally, Hlophe is therefore teetering on the ropes and the referee is almost ready to declare a win for the CC on a technical knockout. It’s close to impossible to think of a scenario in which the JSC does not find that he was in breach of the judicial code of conduct. It is also more than likely that they will find that he is guilty of gross misconduct.

So, the absurd abuse of the process by Hlophe and his lawyers today was not aimed at a legal audience. They are obviously trying for a “political solution”. Hey, if it seemed to have worked for Jacob Zuma, why not for him?

One problem though: the SCA has already noted that Hlophe’s legal manoeuvrings had nothing to do with a concern with the judiciary and the administration of justice and everything to do with his own self-interest. Today’s sad turn of events will only reinforce the perception that Hlophe is a dangerous unguided missile who is only interested in one thing – saving himself at any cost, even if it meant destroying the judiciary. This line of defense will alienate many of the good people in the ANC, who will ultimately have to decide if they will vote for his impeachment in Parliament if the JSC recommends that he be impeached.

Tonight I will say a little prayer for Hlophe’s health in the hope that he recovers from his terrible ailment before Saturday. The sooner this case is dispensed with and the sooner we can rid our judiciary of this destructive behaviour, the better for all of us. If this happens, I might drive out to the Joe Slovo informal settlement with a crate or two of beer to celebrate with the men and women living in that informal settlement whose eviction was ordered by Hlophe in one of the most heartless and pro-rich judgments I have ever read in the new South Africa.

Like me, I am sure the honest and decent people living in Joe Slovo and now threatened with eviction to far off Delft because of Judge President Hlophe’s weirdly cold and dishonest judgment, will cheer the demise of a seemingly brilliant mind brought low by an inexplicable lust for money and power, a lack of empathy for others  less fortunate than himself and an ethical blind spot as large as the Grand Canyon.


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