As it indeed should be. Because the SCA told the JSC, you cannot just close the door on something that is very important to all of us. This issue is the thin end of the tension between the checks and balances in the Constitution and the will of the Executive. Or, less legalistically, it’s the playing field between the Constitution and the ANC. Kind of.

The back story on this one is complicated, but important.

In 2008, out of nowhere one slow Friday afternoon, a press statement landed in the in-boxes of legal journalists around the country. In it, the judges of the Constitutional Court announced they had lodged a complaint with the JSC against Hlophe. They said he had approached two of their number, Judge Bess Nkabinde and Acting Constitutional Court Judge Chris Jafta and tried to influence them in their deliberations in cases relating to whether certain documents could be admitted as evidence against Jacob Zuma. This was before he was president, but while he was leader of the ANC. Hlophe already had form, he’d taken money from a private company while a judge, and had said he had “verbal permission” from former justice minister Dullah Omar to do so. Omar had passed on, and the JSC essentially let him off.

Now things were different. The highest court in the country was pitted against a provincial judge president, with a dash of Zuma and the ANC thrown into the mix. The JSC hummed and haa-ed for some time, before eventually deciding there was a prima facie case to investigate. Its disciplinary committee (which excludes the politicians, but does include representatives of judges, advocates, lawyers etc.) then took evidence from both sides, Hlophe, and some of the Constitutional Court judges. There were already some serious problems. First, some people who should have been on that committee were not. Advocate Dumisa Ntsebeza recused himself because he’d represented Hlophe in another matter, Advocate Izak Smuts (a representative of the advocates profession, and yes, a great nephew of Jan Smuts) was absent because by now President Zuma hadn’t yet signed his letter of appointment. In the end, only 10 people sat on this case. By a majority of six to four, they decided not to proceed with cross-examination because they felt that neither party was likely to change its story. The complaints (including those laid by Hlophe against the Constitutional Court) were declared “finalised”.

Then the NGO, Freedom Under Law, headed by retired Judge Johan Kriegler (who ran our first elections in 1994) launched a high court challenge. At the same time, it emerged on Pierre de Vos’s blog “Constitutionally Speaking”, that the committee should have included Western Cape Premier Helen Zille (it’s clause “k” in a very long section on the JSC in the Constitution, and had clearly been missed by everyone). Of all the provinces, it would have to be that one! So she went to court too.

And it’s the judgments in these two applications that have now been handed down. Five different judges sat in each case, and they were unanimous in both instances. Which means 10 judges ruled against the JSC in one day. That is bad as it gets.

We’re hoping you’re still with us, because these are both worth reading. Both talk about how the JSC was simply wrong in all respects. Both award costs against Hlophe and the JSC. The judgment in Zille’s case is the angrier. At one point it says, “I pause to remark that it would indeed be a sorry day for our constitutional democracy were serious allegations of judicial misconduct to be swept under the carpet for reasons of pragmatism and practicality, as suggested by the JSC. The public interest demands that the allegations be properly investigated, irrespective of the wishes of those involved.” From five judges nogal. That’s strong stuff.

But wait, there’s more: At another point, the question of who on the disciplinary committee voted in favour of Hlophe, and who voted against comes up. The JSC had simply refused to say even what the final split was, just that it was “finalised”. The judges were not pleased, “Nor is this attitude of the JSC reconcilable with our constitutional democracy which values openness and transparency, and this is particularly so when regard is had to the constitutional functions and obligations of the JSC.” Essentially they’re giving the JSC six of the best, they’re asking how dare the JSC behave so counter to the Constitution, when it is so important to the functioning of that Constitution. The main point of this judgment is that you cannot say you didn’t have a fully representative disciplinary committee just because it’s inconvenient; this is way too important to ignore.

In the Freedom Under Law judgment, the judges chimed in with, “It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.” Their main point is to agree with the NGO, that it was simply “irrational” not to put Hlophe, and the Constitutional Court judges under cross-examination. They point out that generally speaking, this is how you test two contradictory versions of facts against each other.

It’s difficult to remember now how likely it seemed back in 2009 that Hlophe could end up on the Constitutional Court itself. It seemed at times like he was really being protected by the ANC. During the JSC’s hearings into who should be appointed to the court when four judges were retiring, it was the party’s Ngoako Ramathlodi who tried to protect Hlophe from questions about this issue, at one point, the room was cleared while the JSC debated his objection.

The question now, of course, is what is the JSC to do? It must be pointed out that neither of these judgments expressly tells the JSC to re-hear the case against Hlophe. But they do set aside the decision not to proceed with the complaint against him. Essentially, the legal clock has been turned back to the point where the JSC has decided to investigate the complaint, and before it decided not to proceed with cross-examination. But these judgments do say the JSC cannot do nothing, they also say they cannot proceed without cross-examination. As De Vos puts it, the “only consequence of this can be a proper hearing”. No doubt some of the country’s legal wise men may disagree.

There is, inevitably, a further complication. The members of the JSC have changed since these complaints were first lodged. This doesn’t help things. But in a very real sense, the question is whether some people will still try to “sweep it under the carpet” again, or whether they’re brave enough to go through with the process. There has never been any indication that Zuma or anyone else asked Hlophe to approach the judges with a view to influencing them. But it has seemed at times he has political support within the JSC. Hlophe may want to muddy waters further by trying to lodge an appeal against these judgments. Of course, he can’t appeal to the very court that complained against him. He’s always claimed this would provoke a “constitutional crisis”. Freedom Under Law director, well-known advocate Jeremy Gauntlett dryly says, “It would be unfortunate if Hlophe were to use his own misconduct to claim he’d provoked a constitutional crisis”. Generally speaking, when this has happened in other countries, where the supreme court is conflicted for some reason, the decision of the lower court has stood. Which would mean the JSC can’t really move.

The JSC meets again on Monday. It will be, um, fascinating. DM

Grootes is an EWN reporter.

Photo of Judge Hlophe: Mail & Guardian