Criminal charges laid against senior NPA officials

Criminal charges have been laid against three National Prosecuting Authority senior officials, the prosecuting authority confirmed on Sunday.

“Yes, it is indeed correct,” NPA spokesperson Nathi Mncube said in reply to an SMS from Sapa. Former acting NPA head Nomgcobo Jiba, director of public prosecutions for north Gauteng Sibongile Mzinyathi and head of the NPA’s specialised commercial crimes unit Lawrence Mrwebi were facing charges of perjury.

City Press newspaper reported that the charges followed court findings made about the NPA’s leadership last year. This was after rights group Freedom Under Law successfully applied to overturn the dropping of criminal charges against former crime intelligence boss Richard Mdluli.

Mdluli is expected back in court on Monday reportedly on charges which included kidnapping, assault and intimidation. Mncube confirmed he was expected to appear in the Palm Ridge Magistrate’s Court but would not say on what charges. According to the newspaper, National Director of Public Prosecutions Mxolisi Nxasana has written to President Jacob Zuma asking him to suspend Jiba, Mrwebi and Mzinyathi, pending an inquiry into their fitness to hold office.

Nxasana himself could be facing suspension, pending an inquiry. This was after reports emerged that he had apparently not been given a security clearance for the job as NPA boss because of past brushes with the law. Earlier this week, the presidency said Zuma had notified Nxasana that he was considering suspending him with full pay. – Sapa

Source: Mail & Guardian

Mdluli wins bid to appeal charges ruling

Suspended police crime intelligence head Richard Mdluli, the National Prosecuting Authority and the Specialised Commercial Crime Unit may appeal against a ruling that charges against him must be reinstated, the high court in Pretoria ruled on Monday.

Freedom Under Law (FUL) did not oppose the application, and said the matter concerned issues of significant public importance which ought to be aired in the Supreme Court of Appeal.

An application by the public interest group to revive a previous interim interdict stopping Mdluli from returning to work would continue only at a later stage.

National police commissioner Riah Phiyega has agreed to give the FUL 30 days' notice if she wants to reinstate Mdluli.

The FUL said it reserved its rights to approach the court again.

Deputy Judge President of the high courts in Johannesburg and Pretoria Aubrey Ledwaba granted leave to appeal against Judge John Murphy's ruling in September in favour of the FUL.

Decision set aside

Murphy had set aside decisions to withdraw charges of money laundering and murder, and disciplinary proceedings, against Mdluli.

Ledwaba said there were compelling reasons to grant leave, and there was a reasonable prospect that another court might come to a different conclusion.

Considering the importance and complexity of the issues, the Supreme Court of Appeal in Bloemfontein would be the correct court to deal with the matter.

Ledwaba said Murphy was not available to hear the application. The application for leave to appeal began before Murphy in October, but due to "some unfortunate altercation" between him and William Mokhari SC, Ledwaba intervened and postponed the matter indefinitely.

The altercation started when Mokhari, who represented the police commissioner, told Murphy it was presumptuous to ask if Phiyega intended reinstating Mdluli.

Murphy repeatedly told Mokhari to sit down and when he refused, Murphy walked out of the court. Mokhari, who is the chairperson of the Johannesburg Bar Council, has since laid a formal complaint about the judge's "demeaning" remarks with the Judicial Service Commission. – Sapa

Richard Mdluli has some explaining to do

Suspended crime intellience head Lieutenant-General Richard Mdluli will have to explain why R150 000 of police funds was used to upgrade security at his house when he appears before a disciplinary hearing in July, City Press reported on Sunday.

The 10 charges Mdluli faces were revealed in court papers filed by former acting police chief Nhlanhla Mkhwanazi in the Johannesburg Labour Court this week. The charges against him relate to his alleged abuse of a crime intelligence “slush fund”, that he misled investigations into 250 covert appointments of crime intelligence operatives, and appointed family members and friends to police positions. The charge sheet states that Mdluli allegedly spent R150 209 on security upgrades to his Boksburg home, authorised air travel for his wife and children to the value of R84 199, and spent R46 809 on business class tickets for his wife.

Mdluli remains suspended from the police service, pending various court actions. The Labour Court case in which Mdluli is challenging his suspension is due to be heard this week. Last year, Mdluli faced fraud and corruption charges for the misuse of the fund, and faced a murder charge for the death of his former lover’s husband. The charges led to his initial suspension. This year, all the charges were withdrawn and Mdluli was reinstated in March. This was widely criticised by, among others, the Democratic Alliance and lobby group Freedom Under Law. Police Minister Nathi Mthethwa later moved him to a different division but Mkhwanazi opted to suspend him. The suspension was lifted by the Labour Court on June 1 but subsequently overturned by the same court.

New top cop Mangwashi Phiyega said she will comment on the investigation into Mdluli after she has read the files on him, the paper reported. “I will be dealing with it.”

Phiyega said documents seen in newspapers were “adulterated”. “Now that I’m here, they will show me the real files and maybe when you talk to me 12 months down the line, I will be able to say I did see the real files and what we were seeing wasn’t the real thing,” she told the publication.

Phiyega also commended the Independent Police Investigative Directorate.

“No doctor can doctor herself. It’s critical and important to have the directorate to police us and to regulate us. I really appreciate its existence.”

Source: Mail & Guardian

Mdluli meddling exposed in prosecutor's attack on NPA

Advocate Glynnis Breytenbach has launched a devastating attack on the acting national director of public prosecutions, Nomgcobo Jiba, accusing her of acting with “an ulterior purpose” in suspending her, allegedly to stop the prosecution of crime intelligence supremo Richard Mdluli. Breytenbach’s allegation forms part of a challenge to her suspension lodged a week ago with the Labour Court in Johannesburg.

Breytenbach was suspended by Jiba on April 30 this year, purportedly in relation to a complaint about her conduct in the prosecution of Imperial Crown Trading (ICT), the company accused of fraud and ­forgery in its battle to secure mineral rights over the giant Sishen iron ore mine. “Her [Jiba’s] real purpose was to stop me from prosecuting a senior police officer, Lieutenant General Richard Mdluli, on charges of fraud and corruption,” said Breytenbach. “She used the ICT complaint against me as an excuse to suspend me.”

The National Prosecuting Authority has denied that the disciplinary steps against Breytenbach have anything to do with the Mdluli matter. Breytenbach’s court papers deliver an indictment of the prosecuting authority’s two key decision-makers in the Mdluli matter – Jiba and advocate Lawrence Mrwebi – both appointees of President Jacob Zuma. Breytenbach’s application signals that judicial and public scrutiny of the Mdluli scandal will expand to the prosecuting authority, notably through allegations of improper decisions by Mrwebi, supported by Jiba, to withdraw charges against Mdluli. It comes in the week North Gauteng High Court Judge Ephraim Makgoba delivered a hammer blow to attempts to politically manage the police side of the Mdluli investigation. Makgoba granted an urgent application by lobby group Freedom Under Law for Mdluli to be interdicted from carrying out any functions as a police officer.

Mdluli will be barred from office pending a full judicial review of the various decisions to abandon corruption and murder charges against him, to terminate internal police disciplinary steps against him and to reinstate him as head of crime intelligence. Now Breytenbach’s application has added fuel to Freedom Under Law’s fire by providing a detailed account of the way in which Mrwebi and Jiba appeared to bend over backwards to protect Mdluli.

The Breytenbach documents reveal that:

• The stated basis for Breytenbach’s suspension was that she had “abused her authority” in the ICT case. It was based on a complaint laid by ICT lawyer Ronnie Mendelow in a letter dated October 31 2011, but she was suspended only six months later, after she had come into critical conflict with Mrwebi and Jiba over the Mdluli prosecution.
• Mdluli’s attorneys delivered representations by hand to Mrwebi in his capacity as national head of the Specialised Commercial Crimes Unit on November 17 2011, although he had not yet been appointed to that post and was officially appointed only on November 25. Mrwebi forwarded the representations to Breytenbach on November 21, requesting a full report by the 25th.
• The representations were based largely on what Breytenbach dismisses as “wild and unsubstantiated allegations” of a conspiracy by the Hawks and police management to falsely implicate Mdluli in the 1999 murder of his former lover’s husband and subsequently to nail him for taking a personal benefit from cars purchased by the crime intelligence secret fund. The latter formed the basis of the corruption case Breytenbach intended to prosecute.
• Much of the evidence for this “conspiracy” is drawn from affidavits by three crime intelligence agents and Mdluli himself. They repeat what Colonel Ronnie Naidoo of crime intelligence told them at a meeting with Mdluli at the Emperors Palace casino on October 27 2011, while Mdluli was ostensibly suspended.
• Naidoo reported to Mdluli that Hawks boss General Anwa Dramat and senior generals Mzwandile Petros and Godfrey Lebeya had begged national commissioner Bheki Cele to dismiss Mdluli before Cele himself was suspended.
• It appears these same affidavits were attached to Mdluli’s November 3 letter to Zuma, in which he made the same conspiracy allegations.
• In overturning Breytenbach’s decision to prosecute Mdluli, Mrwebi claimed to have “consulted with” the North Gauteng director of public prosecutions, advocate Sibongile Mzinyathi, as required by law, but this has been denied.
• Breytenbach alleged: “I later understood from advocate Mzinyathi that advocate Mrwebi had merely mentioned to him that he was considering the charges against General Mdluli and did not consult him on their withdrawal.”
• The sole reason Mrwebi advanced for his decision was that, in his view, the investigation of the corruption charges against Mdluli was the exclusive preserve of the inspector general of intelligence (IGI), an argument not contained in the representations from Mdluli’s lawyers.
• Breytenbach noted: “My understanding all along was that, contrary to advocate Mrwebi’s assertion, the IGI did not regard it as her function to undertake any criminal investigations. She confirmed as much in a letter to the acting national commissioner dated March 19.”
• In that letter, the inspector general stated: “The mandate of criminal investigations rests solely with the police. As such, we are of the opinion that the reasons advanced by the NPA in support of the withdrawal of the criminal charges are inaccurate and legally flawed.”
• When Breytenbach conveyed the inspector general’s letter to Mrwebi, his response was to demand to know why his confidential memorandum on the withdrawal of charges had been disclosed to the inspector general.
• In an extraordinary outburst, Mrwebi wrote back to Breytenbach: “The view of the IGI, following your solicitation of her opinion on the NPA decision on the matter, based on a document which the police or anybody else was not even legally entitled to possess, is for your consumption and does not affect the decision … That decision stands and this matter is closed.” Breytenbach commented: “This response ... was, with the greatest of respect, wholly irrational.”
• When Breytenbach and a colleague prepared a detailed appeal to Jiba to reconsider Mrwebi’s decision, it appears Jiba was content to let Mrwebi respond. That response makes it clear Mrwebi’s real reason was his acceptance of Mdluli’s conspiracy claims, relying on additional secret evidence.
• Mrwebi wrote: “Having been provided with further information on the matter and having been privy to other classified, confidential and high-level discussions with police management, I am concerned that our actions in the matter may be interpreted, justifiably, as amounting to serious abuse of the legal process and as being motivated by ulterior purposes. It is my considered view that it will therefore not be in the interests of justice for the NPA to be further involved in this matter.”
• Concluding that her suspension is unlawful, Breytenbach stated: “I submit that the ineluctable inference from the history of my suspension … is that its purpose is to remove me from office and so prevent me from proceeding with the prosecution of General Mdluli.”

The authority will oppose her application, but has yet to file its response.

The two interlinked cases – Freedom Under Law’s high court review and Breytenbach’s labour court challenge – threaten to expose direct political meddling in decisions about Mdluli.

Government may attempt to manage the fallout by appointing a new national commissioner and has already launched a ministerial task team in an apparent attempt to bolster Mdluli’s conspiracy claims, but the Mdluli tsunami seems unstoppable.

Source: Mail & Guardian

The judgement on Mdluli underscores the importance of civic activism

Judge Ephraim Makgoba’s decision to interdict Lt General Richard Mdluli from his policing duties is a landmark victory for civil society activism and free press.

Corruption Watch (CW) and the Social Justice Coalition (SJC) welcomed Judge Makgoba’s granting of the urgent relief sought by Freedom Under Law (FUL) in the first part of its application to the North Gauteng High Court. The second part of the application will be heard separately on a date provided by the Judge President and will deal with, amongst other issues, the reasons why disciplinary proceedings were withdrawn and why Lt General Mdluli was reinstated as Head of Crime Intelligence.

It is on these issues that CW and SJC have filed a joint application for leave to intervene as co-applicants. In addition to the grounds raised by FUL, CW and the SJC have asked the Court to review and set aside decisions of the NPA to halt the prosecution of Lt General Mdluli for his alleged involvement in murder and corruption.

SJC’s Zackie Achmat said today’s judgement was a “victory for free press particularly investigative journalism, the independent judiciary … it affirms the importance of active citizenship, civil society and social movement activism.” The two civil society organizations were congratulatory of the achievements of FUL’s legal team and Judge Magkoba’s firm stance on the matter. “We are particularly encouraged at the firmness and clarity of the court’s reasoning. The judge made it clear that the SAPS is no ordinary institution, this is no ordinary matter, and Mdluli is no ordinary employee. This matter deserves urgent attention,” said Corruption Watch’s David Lewis

Giving reasons for his decision and referring to allegations leveled against Lt Gen Mdluli, Judge Makgoba pointed out that murder, defeating the ends of justice, fraud and money laundering were serious criminal acts which go to the fabric of public order and security.

“In my view this matter is of considerable public importance [and] the sooner this saga is brought to an end the sooner the credibility of the police, security service and the justice system as a whole can be restored,” said Judge Makgoba.

Source: Corruption Watch

Police boss moves against Richard Mdluli

Acting commissioner Nhlanhla Mkhwanazi appears to be defying political attempts to bury the investigation into the former head of crime intelligence. Mkhwanazi has given embattled crime intelligence boss Richard Mdluli and his ally, the manager of the police secret services account, Major General Solly Lazarus, seven days to give reasons why they should not be suspended for a second time. The move may indicate an increasing defiance by Mkhwanazi of political attempts to bury the Mdluli investigation.

The Mail & Guardian has confirmed from three independent sources that Mdluli and Lazarus both received the letters. Brigadier Lindela Mashigo, Mkhwanazi’s spokesperson, would not confirm this, saying it was an internal matter. Mdluli and Lazarus were reinstated on March 27 following a stormy meeting between Mkhwanazi, Police Minister Nathi Mthethwa and inspector general of intelligence Faith Radebe.

The reinstatement – contrary to Radebe’s written advice that criminal charges against Mdluli and ­disciplinary charges against Lazarus should proceed – was widely viewed as having been precipitated by pressure from Mthethwa. Mthethwa has denied issuing such an instruction, but the withdrawal of murder and fraud charges against Mdluli and his return as crime intelligence boss prompted a public outcry. Last week Mthethwa acted to diffuse pressure by announcing that Mdluli would be temporarily transferred from crime intelligence while a ministerial task team ­investigated claims that there was a conspiracy against him by other senior police generals. But Mthethwa’s action did not prevent advocacy group Freedom under Law from launching an urgent application on Tuesday to have Mdluli suspended pending a full high court review of the decisions that led to his reinstatement.

Mkwhanazi’s move against Mdluli may partially defuse the application, but it also suggests that the government is losing control of its attempts to manage the situation politically. Mkhwanazi has previously expressed his unhappiness over how police decisions on certain cases have been dictated by “powers beyond us” – and was understood to be referring to the Mdluli saga.

Zuma told a business breakfast on Thursday there was “no need for alarm” over the government’s handling of Mdluli, but the Freedom under Law application contains new revelations that will ratchet up public concern.

Source: Mail & Guardian

Ngcobo case: What were Zuma and Radebe thinking?

The section of the Judges' Remuneration and Conditions of Employment Act, on which President Jacob Zuma relied to extend Chief Justice Sandile Ngcobo's term of office, was "almost certainly unconstitutional", constitutional expert Pierre de Vos said on Thursday. De Vos said on his blog site Constitutionally Speaking that Ngcobo had "unwisely" accepted Zuma's offer to extend his term of office.

Zuma recently extended Ngcobo's term for five years after being told it would expire at midnight on August 14. De Vos said Zuma had merely informed political parties and the Judicial Service Commission (JSC) about this decision. This was followed by a Constitutional Court challenge brought by the Justice Alliance of SA (Jasa), Freedom Under Law (FUL), the Centre for Applied Legal Studies (Cals), and Council for the Advancement of the SA Constitution (Casac). Despite an urgent remedying Bill having been tabled in Parliament, the case was heard on July 18 but the court had yet to pronounce on the matter. The applicants contended that Section 8(a) of the Act was inconsistent with the Constitution because Section 176(1) of the Constitution provided for an Act of Parliament -- and only an Act of Parliament -- to extend the terms of office of any Constitutional Court judge.

The second reason was that the delegation of power by Parliament to the president was too wide and provided no guidelines for the exercise of the power. It was also submitted that Section 176(1) precluded the extension of the term of office of a particular Constitutional Court judge, including the chief justice, as distinct from extending the terms of all Constitutional Court judges. The fourth argument was that, even if the president had the power to extend the term of office of the chief justice, the Constitution placed an obligation on that office to consult with the JSC and political parties before making any extension.

De Vos said the inevitable controversy that resulted threatened the integrity of both the office of the chief justice and the incumbent.

Playing party politics
"The government made things worse by refusing to admit that the section on which the president had relied might be constitutionally problematic, and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of Section 8(a) were motivated by a hatred for the chief justice."

With the issue having been politicised and personalised, Ngcobo was placed in an almost impossible situation, De Vos said.

On Wednesday, Justice and Constitutional Development Minister Jeff Radebe announced that Ngcobo had withdrawn his decision to accept the extension of his term of office, and Zuma had accepted this. Ngcobo had taken the decision to protect the integrity of the office of the chief justice and the esteem of the judiciary. "Chief Justice Ngcobo said he found it undesirable for a chief justice to be a party in litigation involving the question of whether or not he or she should continue to hold office, as this detracts from the integrity of the office of the chief justice and the esteem with which it is held," Radebe said.

De Vos said government's original intransigent stance had threatened to destroy the integrity of a judge who had served South Africa with distinction. "By then -- belatedly -- proposing an amendment to the Act that would only extend the term of office of the chief justice and the president of the Supreme Court of Appeal (SCA) ... Radebe further complicated matters as it was far from clear that this new proposal would pass constitutional muster."

Vos questioned why the justice minister and the president had not thought -- a year or two ago -- whether Section 8(a) was constitutional, and what other legal mechanism could be used to extend the term of the chief justice. "How can one govern a country when one does things at the last minute in the hope that one can bluster one's way through by denigrating those who insist on upholding the Constitution? By resigning, Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him."

Vos said the big question now was who Zuma would appoint to the position. Also on Thursday, Casac said Ngcobo had served the Constitutional Court, the judiciary, and the people of South Africa with great skill, ability, and dignity. "We are aware that this would have been a very difficult decision for the chief justice to take."

It was unfortunate that government's failure to deal with the proposed extension in a constitutionally compliant manner had created the conditions for Ngcobo to take this decision. In the legal challenge, Casac had made it clear it was not taking issue with the person of the chief justice. It was the use of Section 8(a) that was the focus of the challenge. The court's decision would provide clarity on the process to be followed in any extension of a term of office of a chief justice in future. "We trust that the president will now follow the provisions of the Constitution in properly consulting with the JSC and the political parties represented in the National Assembly before appointing a new chief justice," Casac said.

Source: Mail & Guardian

Should Freedom Under Law appeal the Hlophe judgment?

A few months after the Judicial Service Commission (JSC) decided that it was not worth trying to find out whether it was Judge President John Hlophe, on the one hand, or some of the judges of the Constitutional Court, on the other, who had lied to it, I gave a talk via video-link to academics in New York about the whole saga.

I had previously taken quite a firm stance (to say the least) against the decision by the JSC not to continue with its investigation, so some of my American colleagues seemed taken aback when I told them that while the decision by the JSC was clearly wrong and bad for the integrity and independence of the judiciary, it was quite understandable that the JSC came to this conclusion and that I had some sympathy for the members of the JSC who in effect voted in favour of protecting Hlophe – despite the evidence and the logic demanding a full enquiry.

I explained that given the fact that only a small percentage of advocates in South Africa are black or female and even fewer of them are Senior Counsel, given further that advocates work for themselves and are likely to flounder unless they are absolutely brilliant or unless they can count on the informal support of colleagues and members of the attorney’s profession, and given the fact that there are still some white advocates — maybe good people, but part of the dominant group and therefore not always attuned to both the very practical and the more intangible problems faced by black and female advocates who join what they experience as a hostile environment — many black advocates feel angry and disillusioned.

Some people in the legal profession find this perplexing. Others complain that black advocates are not buckling up and that they are far too sensitive or spoilt. These complaints often emanate from men who do not seem to “get it” because they happen to be steeped in the culture and unspoken assumptions that reflect their own life experience but not that of black, female and gay and lesbian advocates.

Some heterosexual white men who have always operated in an institutional culture that reflects their world view, their life experience and their way of being in the world find it difficult to comprehend that this culture can be extremely alienating and exclusionary to those who do not share their cultural and professional experience. This institutional culture — which is changing, but perhaps faster in Johannesburg than in Cape Town – is constituted by both formal rules and informal rules that are so part of the dominant group’s life experience that they do not seem to them like rules at all, but just “the way things are”. I suspects large parts of the legal profession are only now beginning to grapple with the kind of changes needed to create a culture that respects or even celebrates the diversity of our country.

I cannot speak for black South Africans or for women, but as a gay man I am acutely aware of the ways in which an institutional culture that does not embrace diversity can disempower one and can make one feel inferior and excluded. This can often work in both harsh and more subtle ways.

One may not be invited to the drinks, the braai, a golf day or the team meeting where bonds are forged, informal alliances made, or informal decisions taken about who will be awarded juicy and interesting work. A feeling of being watched and judged, of always having to prove oneself because one is not “one of the boys”, can permeate one’s professional life. For people who are perhaps not as confident or outgoing as myself or are not as prepared as myself to stand up for themselves and to make “trouble” (yes, I have always had that problem), the professional consequences could be catastrophic.

In this context, it was perhaps inevitable and even understandable that the complaint against John Hlophe – the Judge President of the Division with the smallest number of black Advocates – would be perceived as an attack on black lawyers in general. This is not about taking a “reasoned and principled” stand, but about a highly emotional response that emanates from a highly irregular and unsatisfactory situation.

In fact, I would suspect that for many black lawyers the very “reasons and principles” that those of us who clamoured for a full inquiry in the Hlophe matter relied on, might well have appeared — rightly or wrongly — like nothing more than the “conventional wisdom” of white and privileged lawyers who wished to impose their way of doing things on a vulnerable and angry minority in the profession or to punish an “uppity” black man.

One is always wiser in hindsight, but given my view of the legal profession described above, I might well have employed a slightly different tone on the Hlophe matter. I might well have tempered the outrage of many of my posts of the time. (This outrage, I must confess, was animated by a fierce loyalty towards, and support for, the institution of the Constitutional Court, whose judgments I often strongly disagree with but whose members I respect unconditionally.)

Which brings me to the recent judgment of Mabusa J in the North Gauteng High Court in the case of Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others.

What is not in dispute in this case is, first, that there are significant disputes of fact. Put more bluntly: either judge Hlophe lied or one or more of the Judges of the Constitutional Court lied to the JSC. Second, the JSC decided, before it was reconstituted after the 2009 election, that if the allegations against Judge President Hlophe were true (in other words, if the Constitutional Court judges were not lying) this would constitute gross misconduct that warrant impeachment. After the JSC was reconstituted it eventually decided not to proceed with an inquiry to try and establish whether it was Hlophe or one or more of the judges of the Constitutional Court who were lying because the evidence available to the JSC at that point did not provide conclusive proof either way.

What emerges from the judgment is that the JSC in effect decided that the evidence of the Constitutional Court judges (including Nkabinde and Jaftha JA) presented to the JSC was not of a sufficiently high calibre to support a prima facie case against Judge President Hlophe. At its most generous, one could argue that Mabusa J found that even if the evidence of Nkabinde and Jaftha were true (something disputed by Hlophe) there was not a clear enough case against the Judge President to prove gross misconduct.

In reviewing this decision, the High Court applied a rather old fashioned test familiar to lawyers who battled against apartheid state of emergency regulations, instead of a post-constitutional test in line with the requirements of the Rule of Law and constitutionally-enhanced rules of administrative justice. It asked whether the JSC had indeed “applied its mind” to the matter. The judgment states, correctly, that the court could not declare the JSC decision invalid merely because it disagreed with it or because it was unwise. But it seemed to throw the baby out with the bathwater. It failed to appreciate that in a constitutional state, a court should review a decision by a constitutional body like the JSC applying a slightly more stringent test than merely asking whether the decision-makers applied their minds to the issue at hand. The Rule of Law – a founding principle of our Constitution – now requires this.

When dealing with the question of whether two members of the JSC should have recused themselves because they made statements in support of Hlophe in the months before the JSC decision was taken, the Court similarly applied a pre-constitutional standard and assumed that as long as the impugned members had given plausible explanations of why they would not have been biased, despite having made statements in support of Judge President Hlophe previously, that was the end of the matter.

This is not the constitutional era test for bias requiring recusal. In a constitutional state the test is whether a reasonable person, imbued with all the facts, might have had a reasonable apprehension that the particular members of the JSC were biased or not. The High Court failed to annunciate or apply this test.

Ironically – given the fact that Judge President Hlophe is said to be a champion of legal transformation — the judgment seems to rely on an apartheid-era style of legal reasoning to find against FUL. Those who support the transformation of the legal system — whether they are supporters of Judge President Hlophe or not — should therefore be concerned about the untransformed and conservative nature of the principles and style of reasoning relied on by the High Court to come to the conclusion it did.

But does this mean the judgment should be appealed? Given the racialised nature of the case and the damage already caused by the Hlophe affair to the judiciary, and given the possibility that Parliament would not impeach Hlophe even if the JSC recommended it, should we not perhaps let sleeping dogs lie? I am less enthusiastic about such an appeal going froward than I would have been a year ago. But on balance I would argue that in the interest of the transformation of the legal system, the highly problematic apartheid-style reasoning of the High Court should not go unchallenged.

Maybe those judges in of the Supreme Court of Appeal (SCA) in Bloemfontein – who in the past have not always embraced the transformative vision of the Constitution with the enthusiasm one would have wanted — may correct the legal misconceptions in this case so that the correct kind of legal reasoning could be applied the next time such a case comes before the High Courts.

It might well be that if the SCA sets aside the JSC decision, the JSC will revisit its decision and again decide not to proceed with an oral hearing. I would maintain that such a decision would be utterly irrational and damaging to the credibility of the judiciary but I would abide by such a decision if freshly made. But at least an appeal to the SCA would correct the deeply conservative and untransformed reasoning and application of outdated legal principles used by the High Court, which would be a good thing for the legal transformation of South Africa.

Surely both supporters of the JSC decision and those who — like FUL – would have liked to see the JSC actually making a finding on whether it was Hlophe JP or some judges of the Constitutional Court who were lying through their teeth, would agree that establishing a more progressive jurisprudence regarding the decision making standards employed by a constitutional body like the JSC is more important than the temporary setback for either Hlophe or some of the judges of the Constitutional Court that might result from this decision being overturned?

Source: Consitutionally Speaking

Hlophe application dismissed

An application by legal advocacy body Freedom Under Law (FUL) to force the Judicial Service Commission (JSC) to reopen its investigation into Western Cape Judge President John Hlophe was dismissed in the North Gauteng High Court in Pretoria on Friday.

FUL applied to the court to set aside four different decisions by the JSC in respect of a complaint by 13 Constitutional Court judges, who accused Hlophe of gross misconduct, and his counter-complaint against them. The organisation also wanted the court to order the JSC to hold a formal inquiry into the complaints.

The judges accused Hlophe of trying to improperly influence judgements in pending matters involving Jacob Zuma before he became president. Hlophe in turn accused the judges of violating his constitutional rights by publishing their complaint before lodging it with the JSC and before giving him a hearing.

The JSC in August last year decided to discontinue its investigations by announcing the matter as finalised. FUL contended the only way to restore the public's trust in the judiciary was a full public inquiry and that the JSC's decision not to continue with the investigation threatened the rule of law and the country's future as a democracy.

FUL argued that when judges were accused of gross misconduct, the JSC had to undertake an investigation in order to vindicate the judges who were innocent and to condemn those who were not. Hlophe, who opposed the application, accused FUL if having an attitude that it knew better and simply dismissing the attitude of the judges concerned as being irrelevant. The court was told that Hlophe had no intention of pursuing his counter-complaint against the Constitutional Court judges and that the judges had also accepted the JSC's findings.

Judge Peter Mabuse ruled against FUL on every legal argument raised in support of its application. He stressed that it was not the court's duty to determine the veracity of the complaint and counter-complaint, but to establish if the JSC had followed the procedure laid down in its rules when it considered the complaints. Mabuse said he was satisfied that there was no merit in FUL's complaint that two of the commissioners involved in the decision -- Andiswa Ndoni of the Black Lawyer's Association and advocate Ismail Semenya of Advocates For Transformation -- were biased and should not have participated.

He found that the JSC had been properly constituted and entitled to make the decision it took not to continue with the matters. The decision was also supported by the majority of members. Mabuse said he agreed with the argument advanced by the JSC that it was objective in considering and determining the complaint and counter-complaint and found that the decision had been rational. "... Having considered all the evidence, the JSC found that there was no prima facie evidence which, if proven, could establish a case of gross misconduct against anyone of the parties.

"That is the end of the inquiry by the JSC. It would be wrong for the JSC to extend its inquiry beyond what it was required to do," Mabuse concluded.

Source: Mail & Guardian

JSC 'changed tack on Hlophe'

The Judicial Service Commission (JSC) "changed tack" on controversial Western Cape Judge President John Hlophe after President Jacob Zuma appointed four new members to it last year, the North Gauteng High Court heard this week. Advocate Wim Trengove, acting for the NGO Freedom Under the Law (FUL), told the court that the JSC appeared to have discarded its earlier inquiries into Hlophe's conduct, and his counterclaim against the judges of the Constitutional Court, after the change in its composition.

In the application, FUL is seeking to overturn the JSC's decision not to proceed with its investigations. The non-governmental pressure group, in which former judge Johann Kriegler plays a prominent role, argues that the reopening of the case is essential to maintaining the rule of law and protecting the image of the judiciary.

Trengove submitted to Judge Peter Mabuza that the JSC had been "doing everything right" in terms of its own rules when it launched an investigation into claims by judges of the Constitutional Court that Hlophe had attempted to influence the outcome of a corruption case involving Zuma. At the time, it was thought that the corruption charges were all that stood between Zuma and the country's presidency. Trengove added that the JSC's inquiry into Hlophe's counterclaim that the justices had breached his constitutional rights by the manner in which they had lodged the complaint against him was also according to its rule-book. But, he noted that the JSC "changed tack" after Zuma's appointment of advocates Ismail Semenya, Dumisa Ntsebeza, Andiswa Ndoni and Vas Soni to the JSC.

The four men replaced advocate George Bizos; state advocate Kgomotso Moroko; former head of the ANC's legal and constitutional commission and acting Northern Province premier, advocate Seth Nthai; and a representative of labour and the Public Service Commission, John Ernstzen. The JSC then appeared to drop its earlier inquiries, which had included interviewing Constitutional Court judges. It eventually set up a sub-committee to investigate the matter afresh before deciding not to follow up with a formal hearing. That decision, Trengove asserted, was procedurally irregular and unconstitutional. He also said that, according to the JSC rulebook, the sub-committee's role was "not to evaluate the evidence" but merely to determine whether the claims against the judges were frivolous. "At that point [the sub-committee] doesn't inquire if it's true or not," said Trengove. He said the matter of Hlophe's conduct and his counterclaim were an obvious case where misconduct had to be ascertained because the "complaints were of gross misconduct … judges were accused of impacting upon a judgment while others were accused of conniving, cheating and lying to the public".

These allegations had grave implications for the image of the judiciary. In its heads of argument, the JSC contends that no decision was made on whether to pursue the complaints at the time of the JSC's reconstitution in July last year. Its new members had to acquaint themselves with the case, which was why it was started afresh.

But Trengove attacked these denials, calling them a "misapprehension". He asserted that the decision to follow through with a formal JSC hearing had been taken a year earlier. He provided transcripts of a JSC meeting on July 5 2008 at which the matter was discussed by the commissioners. According to the transcripts, there was unanimity that the charges of gross misconduct had to be tested.

The JSC's subsequent conduct -- including calling for a submission on whether the hearings should be open or closed -- and affidavits bore out the fact that it was preparing for a hearing, Trengove argued.

Source: Mail & Guardian

Kriegler turns to court over JSC Hlophe decision

Freedom Under Law (FUL) chairperson Johann Kriegler will turn to high court action in his bid to challenge the Judicial Service Commission's (JSC) decision over Judge John Hlophe. The organisation, headed by the former Constitutional Court judge, said in a statement on Thursday that the JSC had not responded to a letter it had sent.

The letter requested written reasons for its decision not to pursue a formal inquiry into a complaint and counter-complaint between Hlophe and Constitutional Court judges. "To date, no response has been received and as such FUL will now proceed to the next stage, which requires the filing of founding affidavits in the high court," said FUL.

The organisation said the letter advised the JSC that the organisation would apply to court to have the decision on Hlophe set aside on review. However, before doing so -- in accordance with the Promotion of Administrative Justice Act -- a request was made to the commission for written reasons. The letter was sent to the acting JSC chairperson Lex Mpati on September 10 and the organisation was given until September 15 to respond.

The matter was considered urgent by FUL as the JSC would be conducting interviews with candidates for the Constitutional Court from September 20. No response was received and now the organisation was preparing to file high court papers next week. "Justice Kriegler will be meeting with counsel this weekend to finalise ... [founding affidavits], to facilitate papers being filed in the course of next week."

Last week, according to a Mail & Guardian article, Kriegler said the JSC's decision not to hold a formal enquiry had left Hlophe with a cloud over his head. He said nobody could know whether the allegations against Hlophe were true or not, because the JSC had not pursued the matter fully. "That is the basic malfunction -- it has left poor Judge Hlophe with a cloud over his head." His remarks related to the charge laid by Constitutional Court judges against Hlophe last year for allegedly making an inappropriate approach to the judges regarding a judgement on Jacob Zuma before he became president.

Hlophe had also laid a counter-complaint that the Constitutional Court judges had made public their concerns before he had had a chance to respond. After a preliminary hearing, a reconstituted JSC decided not to go further with the matter and Hlophe ended his special leave by returning to work. On Thursday FuL said the letter sent to Mpati indicated that the organisation felt the JSC's decisions had contravened its constitutionally mandated role. "[These decisions] have left unanswered a very serious complaint and counter-complaint, pervaded by factual disputes, concerning the conduct of judges of the highest court in our country and a judge president of a provincial division of the high court." "Great harm" had been caused to the administration of justice, FuL said in its letter.

The organisation also said the decision had "undermined the independence and impartiality of the courts". There was no resolution as to whether the judges involved in the matter were "fit and proper" or ought to be impeached.

Source: Mail & Guardian