Jacob Zuma is clearly the pioneer of the Stalingrad approach to litigation. 

He was first indicted on charges related to the 1999 alleged Arms Deal corruption in 2005, but he escaped being a co-accused in the trial of Schabir Shaik, charges which were reinstated against him in late 2007. 

Fifteen years later and countless applications before the full panoply of South African courts, Zuma remains charged, but no trial has even commenced. The latest in an unprecedented exhibition of legal imagination is an attempt to have prosecutor Billy Downer SC removed from prosecuting the case. 

There is now an approach to the Supreme Court of Appeal to reconsider its dismissal of the application to have Downer removed from the case. But there can be little doubt that even if this attempt fails, Zuma will head off to the Constitutional Court and if the Constitutional Court finds against Zuma, further arguments will doubtless be raised to ensure that a criminal trial never ever is completed.

By the way, Zuma has filed a criminal complaint against Downer at a Pietermaritzburg police station, alleging that Downer leaked a confidential medical report by a third party to journalist Karyn Maughan. 

Busisiwe Mkhwebane impeachment

With exquisite similarity, the Public Protector has employed the same tactics. It would require a series of columns to describe the various judgments in which the reports of the Public Protector have been set aside and in which adverse cost orders have been made against her. 

Suffice to say, finally, steps were taken by Parliament to initiate the impeachment of the Public Protector after Parliament had appointed an independent panel, which included retired Constitutional Court Justice Bess Nkabinde, to consider whether there was prima facie evidence for the removal of the Public Protector. The panel unanimously concluded that there was prima facie evidence that she had committed acts of misconduct and was clearly incompetent to hold the office of Public Protector.

Off went the Public Protector to the Western Cape High Court, alleging that the panel was biased and that it was improperly composed in that it had a retired judge of the Constitutional Court as one of its members. Further, she claimed there was an unconstitutional limitation imposed upon her right to legal representation before any inquiry into her fitness for office.

The high court agreed that she was entitled to full legal representation and further that it was undesirable for a judge to be part of the independent panel due to the process being inherently politically charged.

Understandably aggrieved by the incoherent judgment of the high court, the Speaker of Parliament approached the Constitutional Court. On the right to legal representation, the Constitutional Court agreed with the high court that the parliamentary limitation on legal representation was not rationally connected to the purpose sought to be achieved. But on all the other aspects of the impugned judgment, the Public Protector came second. 

As a result of the ill-conceived acceptance by the Constitutional Court of Zuma’s right to seek the rescission of an order of the Constitutional Court, an application that was no more than an attempt at another appeal, a true Stalingrad battle had been created.

Notwithstanding that the majority of the Constitutional Court clearly rejected the attempt by Zuma to have a Constitutional Court judgment set aside, the fact that the concept of rescission could be conflated with, in effect, a further appeal to the court against its own judgment has now been exploited by many litigants, in particular, the Public Protector.

Needless to say, a rescission application can never be successful when it is predicated on microwaving the very same arguments that had been rejected by the court in the first instance. Thanks to a Mr Abramjee who had informed one of the counsel in the litigation brought by the Public Protector to prevent the National Assembly from continuing with the impeachment process in terms of section 194 of the Constitution, the Public Protector has decided to institute a further application to the Constitutional Court. 

This time it is to challenge and set aside the order of the Constitutional Court that dismissed her rescission application. Not content with simply exploiting the ill-considered jurisprudence of the Constitutional Court with regard to rescission applications, the Public Protector has now gone further and contended that her right to a fair and public hearing before an impartial court, which is guaranteed in terms of section 34 of the Constitution, was breached by the Constitutional Court itself. 

That there appears to have been a leak from the Constitutional Court by some undefined person to Abramjee, who then passed the information to advocate Andrew Breitenbach SC is being investigated, as it should be. 

On what conceivable legal basis this can cause the court to alter its rejection of a rescission application which in law had no basis is not an argument that even a first-year law student would consider to be justifiable. 

It is now time that the Constitutional Court draws a firm line in the sand with regard to these blatant and legally unprincipled attempts at the exploitation of legal gaps, which only serve to delegitimise the entire legal system. One suspects that the only viable weapon in a court’s arsenal would be to impose punitive costs not only on the litigant, but also on those lawyers who are using the thinnest veneer of legality to postpone the constitutional imperative, which in this case is to investigate the possible impeachment of the Public Protector.

The John Hlophe saga

That brings us to Judge John Hlophe, who too has proved to be a past master in ensuring success in regard to legal delay.

After being found guilty of gross misconduct by the majority of the Judicial Service Commission (8-4), the case of Judge Hlophe had to be referred to Parliament in order that a motion to impeach him should be considered and voted upon. As was his right, Judge Hlophe sought to review the decision of the Judicial Service Commission to refer his case to Parliament. 

On 5 May 2022, a Full Bench of the Pretoria High Court in a comprehensive judgment dismissed all of Judge Hlophe’s arguments. A key aspect of the Judge President’s case was the argument that a senior judge of appeal, Judge Boissie Mbha, had taken the place of the President of the Supreme Court of Appeal, President Mandisa Maya, as well as her alternative, the Deputy President of the SCA, Judge Xola Petse, who were both conflicted due to their personal relationships with Judge Hlophe. 

The court adopted a practical approach to interpreting the composition of the Judicial Service Commission by contending that if the applicable section, section 178 of the Constitution, was interpreted in a rigid and inflexible fashion it would result in an absurdity in a case such as the present one. 

Judge Hlophe, having been found guilty by a tribunal set up by the Judicial Service Commission of committing serious breaches of the Constitution, would be “untouchable”, because the Judicial Service Commission could never have considered his case once he could show that a member or her named alternative was conflicted. 

There was a further argument about Judge Sisi Khampepe sharing the relevant meeting of the Judicial Service Commission. It was clear that she had been appointed as the acting Deputy Chief Justice for the relevant day and accordingly was competent to so preside. Similar arguments, which were even weaker, with regard to the presence of Judge President Dunstan Mlambo and Western Cape Premier Alan Winde were dismissed.

The attempt to review the merits of the decision (JD1) of the Judicial Service Commission met with an even sharper judicial rebuke. Consider the following passage in paragraph 130, dealing with whether Judge Hlophe’s freedom of expression rights were compromised when he engaged in discussions with members of the Constitutional Court:

“There is no room to prevaricate about the role of a judge requiring the imposition of several ethical restraints to which the general public are not bound. Although everyone is at liberty to think what they like, judges are bound to conduct themselves at all times in a manner that protects and promotes the integrity of the legal system. In that context, it is not open to a judge in a private conversation to blurt out his preferences, biases, or opinions to a fellow judge who, to his knowledge, is preparing a judgment on those very issues about which he has a firm view. Every ethical judge would expect the same restraint from other colleagues.”

The crisp question which flows from this decision is whether, in terms of section 177 of the Constitution, the suspension of Judge President Hlophe should be ordered, pending a final determination by the National Assembly as to whether he should be impeached. 

Section 177 (3) provides that the President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1). That clearly provides that the suspension can be imposed when a judge has been subjected to the procedure which ultimately could lead to his or her removal. Somehow the Judicial Service Commission decided not to recommend to President Cyril Ramaphosa that Judge Hlophe be suspended until his court challenge against the gross misconduct finding against him had been decided in court. That itself was excessively generous and indeed questionable

The notion that a judge who has been found guilty by a tribunal set up by the Judicial Service Commission, after which the commission, albeit by a majority, decides that the National Assembly must now institute a process to decide upon the judge’s impeachment can still preside, let alone allocate judges to hear cases as does a Judge President, places a judge in a far more favourable position than any employee who is the subject of a disciplinary process, despite having none of the powers of a judge. It goes to the heart of the integrity of the judicial institution that until such time as every conceivable attempt to review these decisions has been taken, the judge can continue performing his judicial functions as if nothing has happened. 

The problem is that something very serious has occurred: Judge Hlophe has been found guilty of gross misconduct, which renders him unsuitable for continued judicial office. 

Agreed, the National Assembly may decide otherwise, but the idea that a judge should not be placed on “garden leave” until such time as the matter is voted upon by the National Assembly simply because he or she can exploit the same legal strategy as the President and the Public Protector is an affront to the legal system and constitutes a gross dereliction of the Judicial Service Commission’s duty to ensure the legitimacy of the judicial system.

Judge President Hlophe has already applied for leave to appeal against the judgment of the Gauteng High Court. That will require a hearing. If he is successful, it will then be heard by the Supreme Court of Appeal. If that is unsuccessful, there will doubtless be a petition to the Supreme Court of Appeal, and if that petition is rejected an application for reconsideration will be made. If that is rejected or alternatively his appeal to the Supreme Court of Appeal is unsuccessful, there will be an application to the Constitutional Court, and if that proves to be unsuccessful an application for rescission of that decision will be made. 

Properly managed, therefore, it could take at least another two years before these issues are resolved. Judge President Hlophe has carefully studied the new manual on Stalingrad litigation.

How could the interests of the legal system possibly be enhanced by allowing Judge Hlophe to continue running a busy division of the high court for more than two more years as opposed to his being suspended on full pay and full benefits?

If precedent is any guide, the Judicial Service Commission will do nothing. As is par for the course, it will continue contributing in the manner of the other two cases to a chaotic system in which, with enough effort and imagination, a party will never be held accountable in terms of the law. DM

[hearken id=”daily-maverick/9472″]