Hlophe's 'optimistic' claim against ConCourt judges

His lawyers sent an unprecedented letter of demand to Chief Justice Pius Langa on the same day (26 September) Hlophe won his case against the judges of the Constitutional Court in the Johannesburg High Court, which found that the Constitutional Court judges had infringed Hlophe's rights to dignity and equality and his right to be heard by making a complaint about him to the Judicial Service Commission (JSC) and publishing a media statement on it. Hlophe's lawyer Lister Nuku says in the letter that the Constitutional Court judges 'made untested allegations of gross judicial misconduct against (Hlophe)'. According to a report on the Legalbrief Today site, the letter says their media statement was 'deliberate, and aimed at injuring (Hlophe's) personality rights, thus forcing him to resign from his position as a judge'. 'Without conveying the factual basis for such damaging allegations, it is the only reasonable conclusion that the Constitutional Court judges were deliberately negligent and leveraged on their judicial status to mobilise vicious and vindictive public views against (Hlophe) with the sole aim of forcing him to resign from his position as a judge.' The letter also says that as a result of the publication of the media statement, Hlophe 'is associated with corruption, judicial indiscipline, scandals and lack of judgment and discernment. The damage to (his) reputation...is extensive and deep'. Full report on the Legalbrief Today site See also a report in The Star

Defamation lawyers are surprised by the amount claimed. One, Dario Milo, is quoted in weekend media reports as saying the amount of money claimed was entirely inconsistent with existing legal precedents. 'Courts are reluctant to award more than R100 000 - even for the most serious of defamations... If the merits favour his case the most Judge Hlophe would get based on existing precedents is R50 000,' he says in a report on the Legalbrief Today site. A number of other attorneys and advocates, all familiar with defamation law and actions, have pointed out that the largest payout awarded by the country's courts so far has been R200 000 - to Robert McBride, the former Ekurhuleni police chief, who recently sued The Citizen newspaper for defamation. According to a report in the Sunday Tribune, the judge found the newspaper had been incorrect to mention certain actions by McBride during the struggle against apartheid. The judge said that because McBride had been given amnesty for these actions, they could therefore not be raised in the publication. The McBride versus The Citizen case is on appeal. The second highest award granted for general damages was to Reeva Foreman, the owner of a cosmetics company, in the 1980s for a Style magazine article. That amount was R100 000. A Die Burger report quotes Tom Coetzee, former professor in law of the North-West University, as saying Hlophe's claim is 'laughable' and 'only contaminates the administration of justice further'. Full report in Die Burger Full Sunday Tribune report (subscription needed) Full report on the Legalbrief Today site

The Constitutional Court, though, is fighting back, and has launched an appeal against the High Court ruling. The judges argue that when they made public their statement to the Judicial Service Commission (JSC) containing allegation against Hlophe, they did it in the public interest and to safeguard the independence of the judiciary, writes E-Brief News. That is the essence of the appeal. In their papers, the judges argued that the Johannesburg High Court's finding was not justified in law and was contradictory. They stand by their claim that Hlophe had attempted to influence judges Bess Nkabinde and Chris Jafta while the two were preparing their judgment on whether ANC president Zuma should be entitled to challenge aspects of the corruption case he had faced until last month.

The judges make the point that the essence of their complaint ('on the applicant's own version') is true. A report on the Legalbrief Today site says they submit that they had made public their statement to the JSC containing the allegation against Hlophe to safeguard the independence of the judiciary. If details of this complaint had emerged later, there would have been a serious risk that the litigants (Zuma and French arms company Thint), and the South African public, would have questioned the way their decision had been reached. They believed that the litigants and the public needed to know that the court had not succumbed to it. Hlophe believed that he should been given a chance to reply to allegations before they were made public. Full report on the Legalbrief Today site