It has become very difficult to have a rational discussion about either the legal issues or the issues of principle underlying the way in which the complaint lodged collectively by judges of the Constitutional Court against Judge President John Hlophe are being dealt with. Emotions are running so high among both vehement critics and ardent supporters of Hlophe that both sides seem to believe their opponents hold bizarre and even shockingly immoral views damaging to the judiciary and to the country. The truth probably lies somewhere between these two extreme views.
When Constitutional Justices Chris Jafta and Bess Nkabinde testified under oath before a Judicial Service Commission (JSC) hearing in 2008, they both denied that undue or inappropriate pressure from other judges of the Constitutional Court coerced them into being part of a collective complaint lodged by the Constitutional Court against Judge President John Hlophe.
At the time these denials seemed strange if not completely implausible. This is so because after the Constitutional Court announced that it was laying a complaint against Hlophe because of his alleged improper attempt to try and influence judges to rule in favour of President Jacob Zuma in a case dealing with the validity of search and seizure of Zuma’s properties and those of his attorneys, the two judges issued a remarkable joint statement.
In this statement they recorded that they “have not lodged a complaint and do not intend to lodge one.” They placed on record further that they had told other judges of the Constitutional Court “on a number occasions” that “we were not intending to lodge a complaint and neither we were willing to make statements about the matter.”
For some as yet unexplained reason the judges changed their mind and endorsed the joint compliant of the Constitutional Court. At the time, giving the two judges the benefit of the doubt, it appeared to me as if they did this because they realised that if indeed an improper approach was made to them to try and influence a judgment of the Constitutional Court, this was by no means a private matter only affecting them, but a matter of the highest public importance potentially affecting the legitimacy of the Constitutional Court and of the judicial system as a whole.
Their testimony before the JSC at the time said as much. Thus Jafta told the JSC:
“Once it had been explained clearly, the distinction between, on the one hand the interest of an individual judge, and the integrity of the institution on the other hand, we were willing to participate in the complaint at that level so as to protect the integrity of the Constitutional Court.”
When Nkabinde was asked why she did not want to be an individual complainant against Hlophe she said:
“Mr Commissioner, I think in retrospect, one could have done that. This thing happened at the time when one was busy doing all sorts of things. My mind was not clear at the time as to really what is the right thing to do, and given that complexity, I didn’t see it very clearly.”
When asked if she was a willing participant in the collective complaint of all the Constitutional Court justices she told the JSC: “Oh yes, I didn’t have a problem.”
But last week the two justices once again seemed to change their minds. They were again reluctant to testify, the integrity of the Constitutional Court seemingly no longer of concern to them. The justices raised a defence that they are not obliged to subject themselves to the new proceedings (ordered by the Supreme Court of Appeal (SCA) as the proceedings is a nullity because the relevant regulatory framework upon which the proceedings are predicated is a nullity. They intend to take the decision to reject their argument on review, suggestion that they are now extremely reluctant to testify.
From the outside, and without access to all the facts, this new U-turn seems truly bizarre. I cannot see how this serves either the interest of the Constitutional Court or the interest of the two justices. Their present course of action cannot possibly be squared with their testimony given to the JSC under oath in 2008. Does this mean they lied under oath to the JSC back in 2008? Or does this mean they did not lie in 2008, but that they have decided to that it was not worth it for them to try and protect the integrity of the Constitutional Court by testifying at a hearing because of the political pressure brought to bear on them?
This exposes the judges to questions about their own integrity. There may be other reasons for their many U-turns, but in the absence of a full and plausible explanation from the two justices, they run the risk of appearing to be either spineless and weak or unprincipled and perhaps dishonest.
The U-turns are particularly strange in the light of the damning (but contested) evidence given by the two Justices against Hlophe at the original JSC hearing.
When the two judges in 2008 proceeded to give evidence before the JSC under oath they made claims which, if true, would show that Hlophe had tried to influence them in an inappropriate manner. Jafta testified under oath that Hlophe had told him that Zuma was innocent, that he was wrongly prosecuted; and “sesithembele kinina” (we are relying on you, you are our last hope). Hlophe denied (again under oath) that he ever uttered these words.
Nkabinde similarly testified that he had told her there was no case against Zuma “that he has connections with the minister whom he advises, that he has a mandate and that he had a list of names from intelligence containing names of people involved in the arms deal who may lose their jobs”. Once again Hlophe denied many of these allegations.
If these allegations are true and if the denials issued by Hlophe are not accepted by the Judicial Conduct Tribunal, then it would be difficult not to conclude that an impeachable offence was committed by Hlophe. It would amount to a shocking attempt to influence the highest court in the land in order to protect the President from criminal prosecution. It would constitute an attack on the constitution and as it would amount to an attempt to subvert the highest law of the land.
After all, if a judge of one court – claiming to have political connections and a mandate to protect a politician – approaches judges of a higher court in an attempt to influence their judgment in order to try and protect the President of the country from criminal prosecution, it would strike at the heart of the integrity of the legal system. It is difficult to shy away from this stark conclusion.
I would think that for many lawyers who have experienced the systemic racism in the legal profession and in our wider society, it would be emotionally very difficult to accept this conclusion. This would be so, not because they do not believe in the importance of safeguarding the integrity of the Constitutional Court or of the judiciary, but because the carefully cultivated image of Hlophe as a champion for racial transformation, as the one black judge who had been brave enough to challenge racism in the legal profession head-on, is difficult to square with allegations of this magnitude. How can a champion of redress and justice also be a man of rank dishonesty who lacks even the basic integrity required for a sitting judge?
After all, after it emerged that Judge Hlophe had been paid money by an insurance company with a rather unsteady reputation before finally granting that company permission to sue a fellow judges (after the company increased the payments), he authored a report on racism in the Western Cape legal fraternity and the judiciary which he sent to the then Chief Justice. And is it not the oldest trick in the book to try and discredit those who speak out about racism and in favour of transformation by starting to question their credibility and integrity? Did Prof Malegapuru William Makgoba not face this very same tactic when he started challenging the racism of white liberals at Wits?
But regardless of these political dynamics which have (understandably, in my opinion) brought much sympathy and also fervent support for Judge President Hlophe, and regardless of the various technical legal arguments raised in the case, I believe some facts cannot be avoided.
Fact one: given the directly conflicting testimony given under oath at the previous JSC hearing, either Hlophe is a liar or Jafta and Nkabinde are liars. Fact two: a judge who lies under oath cannot and should not be allowed to serve on any court. Fact three: the allegations made by Jafta and Nkabinde, if true, constitute an impeachable offence.
Fact four: unless the appropriate body (whether the Judicial Conduct tribunal or the JSC) makes a finding on which version of events must be believed, the credibility of all three these judges would be fatally compromised. Fact five: unless there is a full hearing in which all parties can give evidence and can be cross-examined, we will never know whether pressure was brought to bear on Jafta and Nkabinde to testify against Hlophe and neither will we know if they were improperly influenced NOT to testify against Hlophe.
One or more people lied. But the person or persons who lied is not an ordinary grubby politician and the lie is not a little white lie about having one drink too many at an office Christmas party. It is in the interest of every litigant who appears before our courts – from the indigent person resisting an unlawful eviction for his or her shack, to the President of the country – that the integrity of judges should be beyond reproach. Once a belief starts taking hold that judges cannot be trusted to make decisions impartially – without being influenced by politicians who trade in power or private business parties who trade in bribes – the legal system ceases to serve the interests of the most vulnerable and marginalised and start serving only the interests of the well-connected and the rich.
It is for this reason that it, surely, cannot be in anyone’s interest not to go ahead with a full hearing in which a credible body would, once and for all, decide where the truth lies. Given the fact that some of the usual suspects (who also resist transformation of the judiciary) have lined up against Judge President Hlophe, it might be tempting for some of us to try and sweep this whole sorry saga under the carpet, to let sleeping dogs lie and to hope that whatever happened in this case was an aberration that would not permanently taint the integrity of the judiciary.
Over this past week I myself flirted with this idea. But the facts keep getting in the way. As the Supreme Court of Appeal (SCA) remarked when it set aside the decision of the JSC not to decide whether it was Hlophe or the two reluctant complainants who had been lying:
“It is alleged that a very high ranking judge, the head of one of the biggest divisions of the high court, attempted to influence two of the judges of another court to decide a matter in a particular way. The allegation was considered to be so serious as to constitute gross misconduct which if established may justify the removal of the judge from office. 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.”
I am fearful of the damage this Conduct Tribunal will do to the reputations if all concerned. What if Justices Nkabinde and Jafta had completely overreacted to the approach by Hlophe and if they had embellished their testimony before the JSC? In that event, Hlophe would have been wrongly persecuted and the two judges would have perjured themselves and would certainly have to face a Judicial Conduct Tribunal of their own for their rank dishonesty. What if they were originally pressured to testify? What if they were now improperly pressured not to testify?
But what is the alternative? Should we ignore the elephant in the room and pretend that nothing went very badly wrong in this case? It seems to me, no matter how painful and potentially damaging to some of those involved in this case, the only responsible course of action is to have an exhaustive and credible process to find exactly where the truth lies. Anything else will leave a festering sore at the heart of our judiciary. DM
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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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