The Supreme Court of Appeal has dismissed an appeal by the Judicial Service Commission and the Judge President of the Western Cape High Court John Hlophe in regard to possible disciplinary hearings against Hlophe
The SCA held that the JSC was not properly constituted, nor did it act with the requisite majority, when it dismissed a complaint lodged by Justices of the Constitutional Court against Hlophe. The proceedings of the JSC and its decision were declared unconstitutional and set aside.
The Justices complained that Hlophe had improperly sought to influence two of them in a case involving President Jacob Zuma before he became president. The SCA also held that in terms of the Constitution, the Premier of the Western Cape Helen Zille, was entitled to be present when the complaint was considered by the JSC.
Zille had brought the application in the High Court against the acting chairperson of the JSC, the JSC itself, past and present Justices of the Constitutional Court and the Judge President of the Western Cape. She did not ask for any relief against the Justices, who were cited because of the interest they might have in the application.
During the appeal hearing in the SCA, the JSC submitted that the decisions taken should not be set aside because of considerations of pragmatism and practicality. However, in a unanimous judgment, five appeal court judges held that it would be a sorry day for the country’s constitutional democracy if serious allegations of judicial misconduct were swept under the carpet for such reasons. The JSC was also criticised for its initial refusal to disclose how many people had voted for and against a resolution to drop an investigation into the alleged misconduct charges against Hlophe.
Hlophe had argued in the SCA that setting aside the decisions of the JSC would be an exercise in futility because Zille had disqualified herself from sitting on the JSC because of bias. The SCA rejected the argument. The Bloemfontein court found that the JSC had not performed its constitutional mandate to consider and make findings on whether there was judicial misconduct on the part of Hlophe.
The SCA judgment found it necessary that the findings of the JSC be set aside to enable it to perform the function which it was still obliged to perform under the Constitution.
The appeal by the JSC and Hlophe was dismissed and they were ordered to pay Zille’s legal costs.
Source: The Sowetan
Showing posts with label John Hlophe. Show all posts
Showing posts with label John Hlophe. Show all posts
Thursday, March 31, 2011
Thursday, December 23, 2010
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
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
Saturday, December 11, 2010
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
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
Friday, August 20, 2010
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
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
Monday, April 19, 2010
Court rules Hlophe proceedings were invalid
The high court in Cape Town on Monday found last year's proceedings of the Judicial Service Commission (JSC), where it dismissed a complaint of gross misconduct against Western Cape Judge President John Hlophe, were "unconstitutional and invalid". High court Judges Jos Jones and Chamin Ebrahim, in finding against the JSC, also ordered it to pay the costs of an application brought by Western Cape Premier Helen Zille, who mounted a legal challenge against the JSC's decision.
Zille had questioned the constitutional validity of the Hlophe decision, saying that she should, as premier, have been invited to be part of the commission when it met to consider the complaint against him. The premier also argued that the JSC, at the time it sat to hear the matter, was improperly constituted because it did not have the required 15 members in attendance during the proceedings and decision-making process. Further, that any ruling of the JSC had to be supported by a majority of its members, which had not been the case in its decision on the Hlophe matter, when only six of the commission's 15 members had voted that the complaint be dismissed.
Zille on Monday welcomed the court's finding and hailed it as precedent-setting. "It sets a precedent: every time the government does something that cuts corners on the Constitution, they will be called into line," she told journalists at a media conference in Cape Town. The JSC would now have to redo the process. "I certainly will be expecting an invite to attend," Zille said, adding that she was looking forward to it.
In their judgement, Jones and Ebrahim found the proceedings of the JSC "and the decision to dismiss the complaint and counter-complaint, which were the subject of those proceedings, are declared to be unconstitutional and invalid". Further, that the "respondents are ordered to pay the costs of this application, which shall include the costs of two counsel".
Source: Mail & Guardian
Zille had questioned the constitutional validity of the Hlophe decision, saying that she should, as premier, have been invited to be part of the commission when it met to consider the complaint against him. The premier also argued that the JSC, at the time it sat to hear the matter, was improperly constituted because it did not have the required 15 members in attendance during the proceedings and decision-making process. Further, that any ruling of the JSC had to be supported by a majority of its members, which had not been the case in its decision on the Hlophe matter, when only six of the commission's 15 members had voted that the complaint be dismissed.
Zille on Monday welcomed the court's finding and hailed it as precedent-setting. "It sets a precedent: every time the government does something that cuts corners on the Constitution, they will be called into line," she told journalists at a media conference in Cape Town. The JSC would now have to redo the process. "I certainly will be expecting an invite to attend," Zille said, adding that she was looking forward to it.
In their judgement, Jones and Ebrahim found the proceedings of the JSC "and the decision to dismiss the complaint and counter-complaint, which were the subject of those proceedings, are declared to be unconstitutional and invalid". Further, that the "respondents are ordered to pay the costs of this application, which shall include the costs of two counsel".
Source: Mail & Guardian
Thursday, September 17, 2009
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
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
Saturday, September 5, 2009
Zille seeks legal advice on Hlophe hearing
The Judicial Service Commission (JSC) could find itself facing a second challenge to its decision on Judge John Hlophe, this time from Western Cape premier Helen Zille. Zille said on Friday her office was seeking legal advice on whether she had been "unconstitutionally excluded" from the JSC committee that met on the Hlophe issue last week.The JSC said it would not to proceed with a probe into allegations that Hlophe tried to influence Constitutional Court judges in a matter relating to President Jacob Zuma. Zille's announcement followed a piece published earlier in the day by constitutional law expert Pierre de Vos, on his blog Constitutionally Speaking.
De Vos asked whether Zille should have been part of the committee when it took the decision. "A clever and alert reader of this blog thinks so -- and I agree," he said. "This would mean the JSC was unlawfully constituted when it made its decision and on that ground alone the decision could be set aside by a court," he said. He said section 178(k) of the Constitution laid down that when the JSC considered "matters relating to a specific high court", the premier of that province or her representative had to form part of the body. Premiers already formed part of the JSC when it decided on appointments for the high court in their provinces, so the composition of the high court was deemed to be "a matter relating to a high court". "It seems to me that it follows by necessary implication that if the premier is involved in the appointment of any judge, he or she must also be involved in the possible removal of any judge," De Vos said.
The article by Pierre De Vos can be found here.
Source: Mail & Guardian
Wednesday, September 2, 2009
Hlophe decision welcomed
The fact that the Judicial Service Commission (JSC) had made a decision on the Hlophe matter meant the long process of restoring faith in the judiciary could begin, the Cape Bar Council said on Tuesday. The findings of the JSC's disciplinary committee would not undo the damage which had been caused by the saga, council chairman Jeremy Muller said in a statement.
However, the decision had at least brought to a conclusion a process which, because of its drawn-out nature, could "only have aggravated the problem. It is in this context that the Cape Bar welcomes the fact that the JSC has at last arrived at a decision," he said. "The long process of restoring the public's faith in the judiciary and repairing the inevitable divisions and tensions which these unfortunate events have engendered can at least now commence."
Source: IoL
However, the decision had at least brought to a conclusion a process which, because of its drawn-out nature, could "only have aggravated the problem. It is in this context that the Cape Bar welcomes the fact that the JSC has at last arrived at a decision," he said. "The long process of restoring the public's faith in the judiciary and repairing the inevitable divisions and tensions which these unfortunate events have engendered can at least now commence."
Source: IoL
Friday, August 28, 2009
The JSC ruling on Hlophe
The Judicial Service Commission complaints committee had decided not to proceed with the gross misconduct complaint against Cape Judge President John Hlophe. Weekend Argus understands the minority of four members of the committee insisted there were disputes of fact between Judge Hlophe and his accusers over his alleged misconduct - and that this could only be cleared up by a formal inquiry.
Speaking to Weekend Argus on Friday, Justice Langa said the Constitutional Court's justices would study the JSC decision before responding to it.
Now you can read the full text of the JSC's ruling here on IOL.
The executive summary can be found here and the minority view here.
Source: IoL
Speaking to Weekend Argus on Friday, Justice Langa said the Constitutional Court's justices would study the JSC decision before responding to it.
Now you can read the full text of the JSC's ruling here on IOL.
The executive summary can be found here and the minority view here.
Source: IoL
Friday, June 20, 2008
Stand up for the Constitution
The most grievous damage inflicted by the ANC's leadership struggle is the growing political contamination of our legal system.
President Thabo Mbeki's opponents accuse him of using South Africa's law enforcement agencies to shore up his leadership -- his intervention in the Scorpions' planned arrest of police chief Jackie Selebi puts the matter beyond doubt. But supporters of Jacob Zuma who level this accusation are just as tainted.
This week Julius Malema made the outrageous threat that he and his fellow hooligans in the ANC Youth League are prepared to kill to prevent Zuma coming to trial. Their only motivation for this is the length of time it has taken to bring Zuma to trial -- when Zuma's systematic blocking tactic at every level of the court system is the main reason for the delay. It does not matter how long the judicial process lasts: if he has broken the law, he must face the music.
But the central point is that it is not for the ANC Youth League or any other political grouping to decide the ANC president's guilt or innocence -- that is the constitutionally determined job of the judiciary.
Then there is the case of Western Cape Judge President John Hlophe, accused by the full Bench of the Constitutional Court of trying to lobby two of its judges in Zuma's favour. Hlophe's guilt must still be decided by the Judicial Services Commission, but the court's complaint quotes him as talking of his "mandate" -- presumably political mandate -- and connections in the intelligence establishment. Let there be no doubt: if politicians and spooks start to lean on the highest court in the land, ordinary South Africans will be in the deepest possible trouble. Such interference raises the spectre of sectional political interests and vendettas shaping our fundamental law.
Freedom and constitutionalism don't disappear overnight. They are eroded by the rhetoric of intolerance, by ignorance and by apathy. Let us, as citizens, not be apathetic and speak up for the nation's founding document.
Source: Mail & Guardian
President Thabo Mbeki's opponents accuse him of using South Africa's law enforcement agencies to shore up his leadership -- his intervention in the Scorpions' planned arrest of police chief Jackie Selebi puts the matter beyond doubt. But supporters of Jacob Zuma who level this accusation are just as tainted.
This week Julius Malema made the outrageous threat that he and his fellow hooligans in the ANC Youth League are prepared to kill to prevent Zuma coming to trial. Their only motivation for this is the length of time it has taken to bring Zuma to trial -- when Zuma's systematic blocking tactic at every level of the court system is the main reason for the delay. It does not matter how long the judicial process lasts: if he has broken the law, he must face the music.
But the central point is that it is not for the ANC Youth League or any other political grouping to decide the ANC president's guilt or innocence -- that is the constitutionally determined job of the judiciary.
Then there is the case of Western Cape Judge President John Hlophe, accused by the full Bench of the Constitutional Court of trying to lobby two of its judges in Zuma's favour. Hlophe's guilt must still be decided by the Judicial Services Commission, but the court's complaint quotes him as talking of his "mandate" -- presumably political mandate -- and connections in the intelligence establishment. Let there be no doubt: if politicians and spooks start to lean on the highest court in the land, ordinary South Africans will be in the deepest possible trouble. Such interference raises the spectre of sectional political interests and vendettas shaping our fundamental law.
Freedom and constitutionalism don't disappear overnight. They are eroded by the rhetoric of intolerance, by ignorance and by apathy. Let us, as citizens, not be apathetic and speak up for the nation's founding document.
Source: Mail & Guardian
Saturday, May 31, 2008
ANC: Zuma has no links to Hlophe
The African National Congress (ANC) said on Saturday that its president, Jacob Zuma, had nothing to do with a senior judge accused of trying to influence members of the Constitutional Court in legal cases involving him. Media reported on Friday that the Constitutional Court said Cape Judge President John Hlophe had approached several members of its bench to influence them in legal cases involving Zuma.
Zuma's defence team has filed an appeal with the Constitutional Court to overturn a lower court ruling allowing prosecutors to use documents seized in raids on properties belonging to the ANC chief and one of his lawyers.
Inkatha Freedom Party (IFP) on Saturday said Hlophe's immediate departure would help to restore trust in the judiciary. The Saturday Star reported that Hlophe has dismissed the accusations made against him as "utter rubbish".
Source: Mail & Guardian
Zuma's defence team has filed an appeal with the Constitutional Court to overturn a lower court ruling allowing prosecutors to use documents seized in raids on properties belonging to the ANC chief and one of his lawyers.
Inkatha Freedom Party (IFP) on Saturday said Hlophe's immediate departure would help to restore trust in the judiciary. The Saturday Star reported that Hlophe has dismissed the accusations made against him as "utter rubbish".
Source: Mail & Guardian
Sunday, April 20, 2008
An executive-minded decision
The issue of land claims and homelessness continues to be one of the most pressing of our social problems. Unsurprisingly, the courts have been drawn into the intricacies of this problem, particularly when it comes to squatters and their removal.
Recently, in the Johannesburg City case, the Constitutional Court sought to guide authorities confronted with the dilemma of the removal of a large group of people who reside in unsafe buildings but who have nowhere else to live. The court's judgement ruled that the relevant authority engaged with the affected dwellers before eviction could take place: "Engagement is a two-way process in which the city and those about to become homeless would talk to each other meaningfully in order to achieve certain objectives." This follows earlier qualifications to the previously absolute right of an authority or land owner to evict persons, but its full implications do not appear to have reached Cape Town.
On March 10, the Cape High Court ordered the eviction of about 20 000 residents from the Joe Slovo settlement. The residents argued that the parties that sought their removal -- a company charged with the task of transforming the settlement into formal housing and the provincial and national ministries -- had no legal standing to bring an application for eviction. They also argued they had a expectation that 70% of the opportunities afforded by the new housing at Joe Slovo would be awarded to their community.
The decision on the argument regarding legitimate expectations is illuminating. Their claim on 70% of Joe Slovo was not denied by the applicants for their eviction. The court accepted this and the entitlement would act as a defence against eviction. But the court also found that the initial occupation was unlawful, which can never give rise to a legitimate expectation, so the residents could not rely in law upon the undertaking that had been given to them.
This is surely a controversial judgment. It cites but one decision as authority for this finding. Although there is no unanimity on the point, there is alternative authority that supports the argument that there is a substantive legitimate expectation, where such an undertaking is given, except if the undertaking is made in violation of a statute or when it is not in the public interest. Neither was the case in this dispute; hence there appears to be a significant injustice if people were removed from land where clear promises had been made to them.
But more problematic is the absence of any engagement as set out by the Constitutional Court. Though the Cape High Court found compliance with the Johannesburg City case, the residents asserted that no meaningful consultation had taken place. The applicants conceded that consultation had been limited. No evidence of such engagement was shown.
A unilateral decision was made to move the residents more then 37km, far from where their children went to school and where many were employed.
Of course a court must seek to balance the state's attempt to give effect to its constitutional obligation to provide housing with the rights of those who are homeless but whose actions may frustrate the housing programme. That will often prove to be a difficult balancing exercise, hence some sympathy for the judicial dilemma. But in this case the court manifestly glossed over the undertaking given to the residents and the legal implications of meaningful engagement before any removal could take place. It is this deference to developers and the diminution of the importance of consultation that makes this judgement so problematic.
This case must raise a debate about the meaning of legal transformation.
Recently, in the Johannesburg City case, the Constitutional Court sought to guide authorities confronted with the dilemma of the removal of a large group of people who reside in unsafe buildings but who have nowhere else to live. The court's judgement ruled that the relevant authority engaged with the affected dwellers before eviction could take place: "Engagement is a two-way process in which the city and those about to become homeless would talk to each other meaningfully in order to achieve certain objectives." This follows earlier qualifications to the previously absolute right of an authority or land owner to evict persons, but its full implications do not appear to have reached Cape Town.
On March 10, the Cape High Court ordered the eviction of about 20 000 residents from the Joe Slovo settlement. The residents argued that the parties that sought their removal -- a company charged with the task of transforming the settlement into formal housing and the provincial and national ministries -- had no legal standing to bring an application for eviction. They also argued they had a expectation that 70% of the opportunities afforded by the new housing at Joe Slovo would be awarded to their community.
The decision on the argument regarding legitimate expectations is illuminating. Their claim on 70% of Joe Slovo was not denied by the applicants for their eviction. The court accepted this and the entitlement would act as a defence against eviction. But the court also found that the initial occupation was unlawful, which can never give rise to a legitimate expectation, so the residents could not rely in law upon the undertaking that had been given to them.
This is surely a controversial judgment. It cites but one decision as authority for this finding. Although there is no unanimity on the point, there is alternative authority that supports the argument that there is a substantive legitimate expectation, where such an undertaking is given, except if the undertaking is made in violation of a statute or when it is not in the public interest. Neither was the case in this dispute; hence there appears to be a significant injustice if people were removed from land where clear promises had been made to them.
But more problematic is the absence of any engagement as set out by the Constitutional Court. Though the Cape High Court found compliance with the Johannesburg City case, the residents asserted that no meaningful consultation had taken place. The applicants conceded that consultation had been limited. No evidence of such engagement was shown.
A unilateral decision was made to move the residents more then 37km, far from where their children went to school and where many were employed.
Of course a court must seek to balance the state's attempt to give effect to its constitutional obligation to provide housing with the rights of those who are homeless but whose actions may frustrate the housing programme. That will often prove to be a difficult balancing exercise, hence some sympathy for the judicial dilemma. But in this case the court manifestly glossed over the undertaking given to the residents and the legal implications of meaningful engagement before any removal could take place. It is this deference to developers and the diminution of the importance of consultation that makes this judgement so problematic.
This case must raise a debate about the meaning of legal transformation.
Monday, March 10, 2008
Anger at Cape eviction order
The Cape High Court has given the go-ahead for the eviction of several thousand residents of the Joe Slovo informal settlement to make way for a housing development. The order, handed down by Judge President John Hlophe on Monday, followed an application by state-owned developer Thubelisha Homes, Housing Minister Lindiwe Sisulu and Western Cape minister of housing Richard Dyantyi. Hundreds of Joe Slovo residents, who had gathered in the street outside the court, chanted angry slogans after the judgment was handed down.
Anti-Eviction Campaign coordinator Mzonke Poni said: "We really do not welcome the judgement because we are saying there's no way a judge can issue an order to evict more than 20 000 people without considering the impact it will have on their livelihoods. The residents are being evicted to make way for the construction of the N2 Gateway housing project.
Source: Mail & Guardian
Anti-Eviction Campaign coordinator Mzonke Poni said: "We really do not welcome the judgement because we are saying there's no way a judge can issue an order to evict more than 20 000 people without considering the impact it will have on their livelihoods. The residents are being evicted to make way for the construction of the N2 Gateway housing project.
Source: Mail & Guardian
Tuesday, October 23, 2007
Call for better complaint mechanism for judges
The Ministry of Justice needs to speed up the formation of an appropriate complaints mechanism dealing with judges, the National Association of Democratic Lawyers (Nadel) said on Tuesday. This follows the controversy surrounding Cape Judge President John Hlophe.
The complaints mechanism should cover procedure to be followed and appropriate sanction in case of adverse findings. "Inasmuch as this matter leads to emotions, it is actually the time for reflection and to drawing of serious lessons from it. We can hardly afford the creation of an environment that discredits the judiciary, a fundamental pillar of our Constitution and democracy," said Nadel general secretary Xolani Boqwana in a statement. He said the commentary around the matter had put tremendous stress on the judiciary and the organised legal profession.
It had undermined democratic and constitutional institutions, in particular the Judicial Services Commission (JSC), it called into question the integrity and credibility of the chief justice, who presides over the JSC, and polarised the judiciary and the legal profession along racial lines. It had undermined transformation of these institutions, which depend on unity for progress. "The actions of Judge President Hlophe, as pronounced by the [the] JSC, proves that the judges are fallible and in the absence of an appropriate complaint mechanism, dealing with judges speedily and appropriately, the JSC will always be put in an invidious position, as in this case."
Nadel said it was inappropriate for judges and members of the legal profession to act or comment in a manner that undermined the judicial process. The JSC's pronouncement should be respected and it is the responsibility of lawyers and judges to ensure that the rule of law is respected. "These people cannot in the forum of the media tear down the integrity of the institutions bestowed with the responsibility of protecting and enhancing the rule of law."
On October 4 the JSC found that there was not enough evidence to proceed with a public inquiry relating to payments Hlophe received from a company, Oasis, and that impeachment proceedings would not be brought against him. However, the commission found that it was inappropriate for Hlophe to have given permission to Oasis to sue fellow Cape Judge Siraj Desai without disclosing his relationship with the company making the application.
The commission has been investigating complaints laid by Cape Town Advocate Peter Hazell against Hlophe after it emerged that the Cape judge president had been on a monthly retainer at Oasis Group Holdings and that he had, between 2002 and 2005, received R500 000 in fees from the company. The finding was described by some political parties as a "slap on the wrist" and retired Judge Johan Kriegler wrote in a newspaper that Hlophe was not fit to be a judge.
Following Kriegler's comments, nine senior advocates from the Cape Bar, some of them former acting judges, publicly called on Hlophe to quit. The move by Kriegler and the advocates drew adverse comment from the Black Lawyers' Association.
Source: Mail & Guardian
The complaints mechanism should cover procedure to be followed and appropriate sanction in case of adverse findings. "Inasmuch as this matter leads to emotions, it is actually the time for reflection and to drawing of serious lessons from it. We can hardly afford the creation of an environment that discredits the judiciary, a fundamental pillar of our Constitution and democracy," said Nadel general secretary Xolani Boqwana in a statement. He said the commentary around the matter had put tremendous stress on the judiciary and the organised legal profession.
It had undermined democratic and constitutional institutions, in particular the Judicial Services Commission (JSC), it called into question the integrity and credibility of the chief justice, who presides over the JSC, and polarised the judiciary and the legal profession along racial lines. It had undermined transformation of these institutions, which depend on unity for progress. "The actions of Judge President Hlophe, as pronounced by the [the] JSC, proves that the judges are fallible and in the absence of an appropriate complaint mechanism, dealing with judges speedily and appropriately, the JSC will always be put in an invidious position, as in this case."
Nadel said it was inappropriate for judges and members of the legal profession to act or comment in a manner that undermined the judicial process. The JSC's pronouncement should be respected and it is the responsibility of lawyers and judges to ensure that the rule of law is respected. "These people cannot in the forum of the media tear down the integrity of the institutions bestowed with the responsibility of protecting and enhancing the rule of law."
On October 4 the JSC found that there was not enough evidence to proceed with a public inquiry relating to payments Hlophe received from a company, Oasis, and that impeachment proceedings would not be brought against him. However, the commission found that it was inappropriate for Hlophe to have given permission to Oasis to sue fellow Cape Judge Siraj Desai without disclosing his relationship with the company making the application.
The commission has been investigating complaints laid by Cape Town Advocate Peter Hazell against Hlophe after it emerged that the Cape judge president had been on a monthly retainer at Oasis Group Holdings and that he had, between 2002 and 2005, received R500 000 in fees from the company. The finding was described by some political parties as a "slap on the wrist" and retired Judge Johan Kriegler wrote in a newspaper that Hlophe was not fit to be a judge.
Following Kriegler's comments, nine senior advocates from the Cape Bar, some of them former acting judges, publicly called on Hlophe to quit. The move by Kriegler and the advocates drew adverse comment from the Black Lawyers' Association.
Source: Mail & Guardian
Thursday, October 4, 2007
JSC: No impeachment proceedings against Hlophe
No impeachment proceedings will be instituted against Cape Judge President John Hlophe, the Judicial Service Commission (JSC) said on Thursday. Chief Justice Pius Langa said although the JSC members were divided on whether there was sufficient evidence to justify proceedings that could lead to impeachment, it was generally agreed the proceedings should not be pursued. "Ultimately the majority view was that there was not sufficient evidence to proceed with a public inquiry in regard to the main count of receiving payment from Oasis without consent from the minister," Langa said, briefing the media after a JSC meeting on Hlophe.
The commission, however, expressed dissatisfaction over some of the explanations it had received from Hlophe. "In addition, the JSC was unanimous in its view that it was inappropriate for the judge president to have given permission to Oasis to sue Judge Desai without disclosing his relationship with Oasis," Langa said.
Source: Mail & Guardian
The commission, however, expressed dissatisfaction over some of the explanations it had received from Hlophe. "In addition, the JSC was unanimous in its view that it was inappropriate for the judge president to have given permission to Oasis to sue Judge Desai without disclosing his relationship with Oasis," Langa said.
Source: Mail & Guardian
JSC: No impeachment proceedings against Hlophe
No impeachment proceedings will be instituted against Cape Judge President John Hlophe, the Judicial Service Commission (JSC) said on Thursday. Chief Justice Pius Langa said although the JSC members were divided on whether there was sufficient evidence to justify proceedings that could lead to impeachment, it was generally agreed the proceedings should not be pursued. "Ultimately the majority view was that there was not sufficient evidence to proceed with a public inquiry in regard to the main count of receiving payment from Oasis without consent from the minister," Langa said, briefing the media after a JSC meeting on Hlophe.
The commission, however, expressed dissatisfaction over some of the explanations it had received from Hlophe. "In addition, the JSC was unanimous in its view that it was inappropriate for the judge president to have given permission to Oasis to sue Judge Desai without disclosing his relationship with Oasis," Langa said.
Source: Mail & Guardian
The commission, however, expressed dissatisfaction over some of the explanations it had received from Hlophe. "In addition, the JSC was unanimous in its view that it was inappropriate for the judge president to have given permission to Oasis to sue Judge Desai without disclosing his relationship with Oasis," Langa said.
Source: Mail & Guardian
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