Only dead fish go with the flow
19 November 2017 23:39 (South Africa)
Opinionista Pierre de Vos

Hoffman’s complaint: why it was bound to fail

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

The Judicial Conduct Committee this week dismissed a complaint by Adv. Paul Hoffman against Chief Justice Mogoeng Mogoeng stemming largely from a speech the Chief Justice made on judicial transformation. As the compliant was based on shaky legal grounds, this, I contend, was the correct decision to reach. Here is why.

My inbox is flooded by emails of people asking for free legal advice. A few of these emails contain heartrending stories of injustice and human rights abuses. Many more contain rambling, vague and often paranoid complaints about often non-existent abuses of human rights. Judging from the latter kind of emails there are quite a few delusional narcissists out there who keenly believe that they are being persecuted and that the world would come to an end if the persecution is not stopped.

It is not always easy to distinguish between the former and the latter kinds of emails. Those who suffered real harm are sometimes inarticulate and unable succinctly to focus on the relevant facts. Those who are merely delusional can sound very convincing.

Which brings me to the dismissal of the complaint lodged against Chief Justice Mogoeng Mogoeng by the Institute for Accountability’s Paul Hoffman. Allegations of misconduct by the Chief Justice will alarm many people – especially given the controversial manner leading to the appointment of the Chief Justice. But such allegations can also be spurious, stemming from the unexamined fears and preconceptions of the accuser, and may not be based on plausible legal grounds.

It is therefore important to analyse the allegations made by Adv. Hoffman and the manner in which the panel of the Judicial Conduct Committee (JCC) dispensed with them to ascertain whether we are dealing here with a serious matter that threatens the independence and integrity of the judiciary or merely with an egotistical but entirely harmless set of allegations properly dismissed by the JCC.

The complaint was dealt with in terms of the relevant provisions of the Judicial Service Commission Act. The Act – amended in 2008 – now provides for an elaborate mechanism to deal with complaints against judges. At the heart of this mechanism lies the principle that it is always better for judges to be directly involved in determining the merits of such complaints against fellow judges in order to safeguard the independence of the judiciary and the integrity of the complaints process.

Section 17 of the Act therefore states that whenever the Judicial Service Commission (JSC) receives a complaint against a judge which may, if proven, amount to a serious but non-impeachable transgression by that judge, a member of the Judicial Conduct Committee (JCC) must investigate the complaint in order to determine the merits of the complaint.

The JCC – in effect a subcommittee of the JSC – is composed of the Chief Justice, who is the Chairperson of the Committee; the Deputy Chief Justice; and four judges, at least two of whom must be women. But where a complaint is against the Chief Justice he must recuse himself. Adv. Hoffman’s complaint was duly referred to two members of the JCC – Judge President HMT Musi and Judge C Pretorius – who decided the complaint was entirely without merit. A study of the reasons given for this decision suggests (to me at least) that the complaint may have had more to do with the personal animus between the Chief Justice and Adv. Hoffman than with high principles regarding the integrity of the judiciary.

Section 14(4) of the Judicial Service Commission Act sets out the grounds upon which any complaint against a judge may be lodged. These grounds include, amongst others, incapacity; gross incompetence; gross misconduct; a wilful or grossly negligent breach of the Code of Judicial Conduct; or any other wilful or grossly negligent conduct that is incompatible with or unbecoming the holding of judicial office, including any conduct that is prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts.

The complaints lodged by Adv. Hoffman were dismissed as not implicating any of the grounds listed in section 14(4). There was therefore no case to answer by the Chief Justice.

First, the Chief Justice was found not to have breached the Judicial Code of Ethics which prohibits a judge from engaging in a public debate about a case and from participating in public debate about matters relating to the judicial profession in a manner that would undermine the integrity of the judiciary.

This was so, because the “frankly expressed” remarks of the Chief Justice was not on the subject of the merits of a particular case but about judicial transformation, a practical, on-going issue that has been debated for a long time and will continue to be debated by judges and members of the public alike. The Code, it was found, clearly did not prohibit any judge from engaging in such a debate – although remarks made by the Chief Justice “were bound to sit uncomfortably with sections of the legal profession and the judiciary”.

This seems to be just about right to me. To hold otherwise would have had an enormously chilling effect on judges and would have made it almost impossible for judges ever to give public speeches on anything but the most anodyne topics. I, for one, would have never made the effort again to organise an annual human rights lecture, knowing full well that the judge I invited would not say anything remotely interesting.

Secondly, the argument that the Chief Justice had brought the judiciary into disrepute because he involved himself in the “politics and policy aspects of affirmative action measures in a manner unbecoming to a judge” was similarly dismissed. As the panellists of the JCC pointed out, the matter of judicial transformation is a matter of great public interest. The JSC, headed by the Chief Justice, has been embroiled in controversy about its role in giving effect to judicial transformation and the supposed non-appointment of white males to the judiciary.

It was, found the panel of the JCC, impossible for the Chief Justice to avoid talking about the matter and he was therefore perfectly entitled to participate in the discussions about the transformation of the judiciary and the legal profession. Because this touches on sensitive constitutional issues of race and gender, the debate was bound to have political connotations.

It seems to me this finding must be right. The boundary between law and politics can at best be described as a porous one. Almost all legal questions (well at least the legal questions that I am interested in) have political connotations. For example, questions about how a company should be managed in terms of the companies act can be profoundly political, implicating one’s view on capitalism, exploitation of workers and a number of other highly politicised issues.

Similarly, whether the law should recognise the unequal bargaining power between consumers and companies who they enter into contract with, is a profoundly political question, implicating the economic ideology of the participants. Surely this cannot mean that a judge should never make any statement about the role of the Constitution in transforming the law of contract (or the Company Law, for that matter) to eradicate the inherent injustice in the capitalist, laissez-faire inspired fiction that freedom of contract exists between two inherently unequal parties?

The one aspect of Adv. Hoffman’s complaint that may have appeared plausible, relates to words alleged to have been uttered by the Chief Justice towards Adv. Hoffman in The Hague earlier this year. The alleged words – “you can continue to challenge me but you will continue to be frustrated” – if indeed uttered, seemed to have been the result of an ongoing and increasingly acrimonious dispute between the Adv. Hoffman and the Chief Justice.

Adv. Hoffman had, according to his own admission, written to the Chief Justice to demand clarity from the Chief Justice on his fitness to hold office. As the panel pointed out, this was a rather startling thing to do. I am not aware of any lawyer ever having done so before in the history of South Africa – including during the apartheid era. Anyone is entitled to lodge a complaint against any judge with the JSC – but engaging a judge – including the Chief Justice – in a private correspondence in which one alleges he is unfit for office seems to have displayed a rather startling lack of decorum.

As the panel pointed out: “It is indeed shocking to hear that an advocate could write letters to a sitting judge demanding that the judge explains his fitness to hold office.” In any case, in the absence of knowledge of the broader context in which the words were uttered it would be impossible to know what was meant by the words. At the very least there was no indication that the words was meant to refer to cases being heard before the court and not to the various efforts made by Adv. Hoffman to ridicule and humiliate the Chief Justice.

In my humble opinion, it might well be that a more astute, unflappable and emotionally generous judge would not have used the words that the Chief Justice was alleged to have used. It might also be that, given the political setting and the obvious contempt in which Adv. Hoffman holds the Chief Justice, it was a strategic blunder on the part of the Chief Justice not to hold his tongue. But I would have been rather surprised if fellow judges of the JCC had found that these words constituted a breach of conduct prohibited by section 14(4) of the JSC Act. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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