Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
Judge President John Hlophe has filed papers in the Constitutional Court requesting that the ten judges involved in the complaint of gross misconduct against him recuse themselves and that they be replaced to hear his appeal in which he alleges that the Constitutional Court judges infringed on his rights. He argues that his right of access to court will otherwise be infringed.
Hlophe says section 175(1) of the constitution allows the president to appoint acting judges when a judge is “absent,” on the recommendation of the justice minister in concurrence with the Chief Justice.
It seems to me Hlophe is asking for his case to be heard by a tribunal that would not be a legally constituted “Constitutional Court”. He wants his case heard by a tribunal he wished existed and not by the legally constituted Constitutional Court. But no one has the right to choose the judges in front of which his case will be heard. Legally his application is, quite frankly, a waste of time and money. But this is not about the law. It is about Hlophe’s attempt to conjure up a “constitutional crisis” that will prevent any decision on the merits of the case against him and will let him off the hook – regardless of what he might have done.
There are both technical and policy reasons why this application is an abomination.
It is true that section 175(1) states that the President may appoint someone as an acting judge to the Constitutional Court “if there is a vacancy or if a judge is absent” on the recommendation of the Minister of Justice “acting with the concurrence of the Chief Justice”. One could point out that the Constitutional Court judges will be sitting in their offices when all this is supposed to occur so they will not be absent (“not present”, “missing”) as required by the Constitution.
But let us assume that the word “absent” can be given an extraordinary wide meaning to include a situation where the judges are not really “absent”, but recused themselves from a particular case. Let us assume that it is not the judges sitting in their offices, reading cases, discussing judgments, drinking tea, but merely their ghosts floating around the corridors of the Constitutional Court building. Even then, this application stinks to high heaven.
Section 167(2) states that a matter before the Constitutional Court must be heard by “at least eight judges”. These judges must be appointed in terms of section 174(4) and (5) which requires the Judicial Services Commission (JSC) to make recommendations to the President who then has to appoint these judges. However up to three judges can be appointed as acting judges if some of the legally apointed judges are absent or if there is a vacancy in the court. In the latter case the JSC plays no role in the appointment.
Hlophe’s application asks us to suspend these provisions of the Constitution to allow the Minister of Justice, in effect, to appoint a new panel to hear his case, circumventing the carefully crafted provisions that ensured a decisive role for the JSC in the appointment of judges. This is both daft and dangerous. These sections of the Constitution help to safeguard the independence and impartiality of our highest court and is also fundamental to the notion of the separation of powers doctrine which requires the three branches of government to operate independently.
If Hlophe gets his way, a tribunal will be appointed by the President who will purport to be a Constitutional Court but will really not be an independent and impartial court appointed in terms of the Constitution. Because the JSC would not have had any say in the appointment of this tribunal, it will not be a court that complies with the requirements of judicial independence. Because the Minister will in effect appoint the judges, it will also constitute a fundamental attack on the separation of powers doctrine. This body will be a weird kind of legal tribunal – a bit like a disciplinary body for a tennis club – without any constitutional mandate or power.
In any case, it would not remedy Hlophe’s concerns about a “biased” court at all. As the Chief Justice is involved in this case and will be involved in the appointment of the tribunal, this new members of the tribunal will also have to recuse themselves. Surely Hlophe would not be happy with a tribunal appointed by someone who is a party to the matter? Either that or the Minister will have to recommend the appointment of the tribunal on his own, opening the way for a manipulation of the process to give Hlophe the bench that he might have hoped for but that does not exist in law.
Hlophe’s application seems to be predicated on the notion that the right of access to court includes the right to have your case decided by the Constitutional Court. There is no such right. The fact that Hlophe thinks there is, says much about his grasp of constitutional law. There is a right to approach the Constitutional Court and if it is in the interest of justice to do so, this court will hear the case. It is clearly not in the interest of justice for the Constitutional Court to hear the present case, but hey, who cares about justice, our Constitution and an independent judiciary, when an egomaniac’s self-interest is at stake?
I find this application astonishing and, quite frankly, scary. It suggests that the Judge President has no firm grasp of judicial independence and the separation of powers or, if he has, that he could not care less about these principles. The application (inadvertently?) further tarnishes Judge President Hlophe’s image and suggests that he is about as principled and honest as Hansie Cronje and those bookmakers he used to hang out with.
The application also sites the Minister of Justice and the President. They need to take a firm stand against these shenanigans by someone who is supposed to be a judicial leader. If they do not, we will know that the nice assurances about their respect for the independence of the judiciary and the separation of powers were no more than empty words. It is crunch time for the executive who must now face up to the fact that there is nowhere to hide from this mess.
Either you take a stand against the undermining of our judiciary by a wayward judge whose own self-interest will always trump the interest of society, or you get tarred with the same brush. In Afrikaans we have a nice saying for this: “Meng jou met die semels dan vreet die varke jou op.”
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