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Legalbrief   |   your legal news hub Wednesday 29 November 2023

JSC credibility compromised

Whichever way you juggle the JSC decision to clear Cape Judge President John Hlophe of gross misconduct it's impossible to discard the view that the outcome was politically managed.

After all, writes Legalbrief, if media reports are accurate, three of President Jacob Zuma's recent appointees to the JSC voted along with new Justice Minister Jeff Radebe to put an end to the stand-off between Hlophe and judges of the Constitutional Court. Those four were part of the six that made up the majority view in a decision that not only split the JSC, but has also split the legal profession and left the credibility of the JSC severely compromised. It's worth remembering that the JSC began the Hlophe process in April before it was interrupted by Radebe. In between that stoppage and Friday's decision, the JSC's compositions changed significantly, with Zuma weighting the body with his own people.

Importantly, two of the country's most senior judges wanted the matter to be referred to a formal hearing. The Sunday Independent claims to have established that Judge President of the Supreme Court of Appeal, Lex Mpati, and North and South Gauteng Judge President, Bernard Ngoepe, were two of the four making up the minority opinion. Others in the minority group were Julian von Klemperer and law academic Professor Engela Schlemmer, who the paper says fought for their dissenting view to be made public - with their names attached to it. Three of the six making up the majority opinion - senior advocate Ishmael Semenya, senior counsel Vas Soni and Black Lawyers' Association president Andiswa Ndoni - were recently appointed to the JSC by Zuma. The report notes Semenya would not be drawn on how he had voted, and rubbished an article in the investigative magazine noseweek that painted him as the key orchestrator in the campaign to see the judge cleared. Full report in The Sunday Independent

The majority held that there was no prima facie evidence that Hlophe sought to influence Constitutional Court judges on pending judgments against Zuma, who at that point was SA's President-in-waiting. According to a report on the News24 site, JSC spokesperson Advocate Marumo Moerane said the commission also decided to drop its investigation into a counter-complaint by Hlophe against the judges for going public with their charges. 'The decision was to drop the charges and the counter-complaint because in the view of the commission proceeding with the matter would have been futile in that it would not have amounted into a guilty finding of gross misconduct,' Marumo said. The widely-expected decision brings to an end a 15-month dispute between Hlophe and the judges of the Constitutional Court, and boosts his hopes of being appointed to the Bench of the highest court. Full report on the News24 site Executive Summary Decision & Reasons Minority Decision

Hlophe's discussion with Judges Bess Nkabinde and Chris Jafta on the Zuma matter were no more than 'unwise' or 'imprudent', according to the JSC majority. 'The commission accepted that it might have been unwise and imprudent for Hlophe JP to talk to the judges about the cases and make the comments that he did. But it is not persuaded that Hlophe JP's actions make him guilty of gross misconduct,' it said in a summary of its decision, notes a report in The Witness. A minority report called for a formal inquiry, pointing out that at issue is not whether Hlophe did indeed influence the judges, but whether he tried to do so. The report notes dissenting JSC members said only cross-examination could clear up the contradictions of fact between Hlophe's testimony and that of the Constitutional Court judges. But the majority was not convinced that a full inquiry with cross-examination of Hlophe would help to establish what his true intention had been in discussing Zuma's legal woes with Nkabinde and Jafta. Full report in The Witness

The outcome appeared to hold no surprises for Chief Justice Pius Langa. 'Let me just say that we are not spending sleepless nights over this. We have more important things to worry about,' he is quoted as saying in a report in The Star. He added that the Constitutional Court justices would study the JSC decision before responding to it. Hlophe's attorney, Barnabas Xulu, said his client felt that the majority ruling was 'a vindication' and showed that the Constitutional Court's conduct had 'not been prudent'. 'We are looking at the damage done by these very powerful people and (Judge Hlophe) is applying his mind to the ruling. We feel that this decision will at least enable him to again exercise his competency as a judge.' Xulu declined to say whether Hlophe would pursue a damages claim. Hlophe is expected to return to work today. Full Saturday Star report (subscription needed) Full report in The Star

General Council of the Bar chair Patric Mtshaulana is among those who believe it is important that the dispute is over. 'We can now look forward to the new Chief Justice, when appointed, to try to repair the damage that has been caused by this dispute, try to heal the wounds, and rebuild the unity of the judiciary and the profession.' He is quoted in a report in The Weekender as saying he is sure that 'not all members' of the General Council of the Bar 'will be happy with the outcome', but 'that's just the nature of this matter'. The paper also quotes a source close to Hlophe, who describes the decision is 'a victory', but adds it is disappointing that the findings do not spell out general principles, in terms of the Constitution, as to what is acceptable in interaction between judges. However, a senior lawyer says while Nkabinde and Jafta might not have said Hlophe asked for a finding in favour of Zuma 'in so many words', this is the clear conclusion one would come to on their evidence. 'There is at least clearly a case to be investigated,' the lawyer told the paper. Constitutional law expert Pierre de Vos told Beeld the ruling marked 'a sad day for the Bench'. He added the JSC's credibility was in tatters. According to De Vos, the ruling has the effect of finding that one or more judges lied. 'They (the judges) will remain in their positions on the Bench and judge cases despite the fact that one or more of them are pathological liars,' he is quoted as saying. AfriForum also slammed the ruling, calling it a 'serious setback for the credibility of the SA judiciary'. CEO Kallie Kriel also noted that the country now has a liar in a senior position and nobody is sure who it is. Full report in The Weekender Full Beeld report

Unsurprisingly, the ANC and opposition parties were at odds over the ruling. The ANC welcomed the decision, saying it was bound to restore public confidence in the independence of the judiciary. 'The ruling also puts behind months of uncertainty about the future of Judge Hlophe and instability in the Cape Town High Court bench leadership,' the ANC said. 'We are happy that Judge Hlophe is now set to go on with his life on the Bench and resume his duties.' Opposition political parties, however, were unanimous in their condemnation of the decision, notes a report on the News24 site. DA leader Helen Zille said the decision cast a dark cloud over SA's entire judiciary. Zille said the decision marked a departure from post-apartheid SA's strong tradition of 'respect for the rule of law and judicial independence'. 'It reflects both the outcome of the ANC's attainment of a majority on the JSC and the lengths to which the ANC will go to repay political favours - even to the detriment and subversion of our democracy,' Zille said. Independent Democrats leader Patricia de Lille said the decision meant a question mark would hang over Hlophe's head for the rest of his judicial career. 'The correct decision would have been the one expressed by the minority ruling - that the issue should be decided after a full cross-examination,' she said. Full report on the News24 site

Legal commentator Carmel Rickard wonders what the decision means for the Bench. She writes in her column in The Weekender: '...will Hlophe go away and sin no more, I wonder? Will he count his blessings and start to behave in a way that befits someone holding a position of trust in society? Or will he regard this escape as his due and continue his suicidal plunge into judicial shame, taking public confidence in the bench down with him?' Going on his past record, unfortunately we can expect yet more outrageous behaviour and a further decline in public respect for, and confidence in, the judiciary.' She notes, too, that the 'new-look commission, whose first step has been to clear Hlophe behind closed doors, will at last do some work in public this coming weekend' - at the interviews for judicial candidates. However, she warns the questioners themselves should be just as much under the spotlight. 'Having delivered the required verdict in the matter of Hlophe and the Constitutional Court judges, they seem set to do likewise in the selection of candidates,' writes Rickard. Full column in The Weekender Where to now? The Hlophe soapie (in the Sunday Times) WHAT THE PAPERS SAY: Sunday Times: 'Friday's ruling cleared the legal, though not the moral, obstacles to Hlophe's bid for a Constitutional Court seat. After Judge Sandile Ngcobo's likely short term, at the age of 53 Hlophe could go on to become Chief Justice. Should that happen, the two most powerful men in the country - the President and the Chief Justice - would serve with unanswered charges against them that go to the heart of their suitability for office.' Full Sunday Times editorial The Sunday Independent: 'To allay any possible speculation and suspicion, Judge Hlophe should ideally have appeared before the JSC so that the serious allegations against him could have been properly and thoroughly interrogated. To be accused of trying to improperly influence two judges of the Constitutional Court on a case involving President Jacob Zuma is a highly serious matter and the country's interests would have been better served had Judge Hlophe been exonerated and his name cleared by the JSC after a proper public hearing.' Full editorial in The Sunday Independent (subscription needed) Sunday Tribune: 'Hlophe lobbyists may see this as a victory, another step forward in their man's march to being appointed Chief Justice in two years. We see it as an opportunity lost in the struggle to improve public confidence in our judiciary.' Full Sunday Tribune editorial (subscription needed) Beeld: 'they (the JSC) ... choose the word of the country's most controversial judge - one with a long history of doubtful versions and wild statements - above those of a judge of the highest court with an impeccable reputation. Recently former Judge Johann Kriegler said the JSC might have become a threat for the independence of the judiciary. Little did we know Kriegler would be proved right so quickly. The Zuma administration must be extremely happy with the decision.' Full Beeld editorial Business Day: '...the JSC majority opted to simply avoid the issue by coming up with a convoluted rationale based on whether or not Hlophe expressly told either of the two judges to rule in a particular way in the Zuma case. And since he apparently only hinted broadly in that direction - saying Zuma was being persecuted and there was no case against him, that we 'pin our hopes on you', and the case had to be decided 'properly' - there was insufficient evidence to make a finding on Hlophe's intentions. That is nonsensical even to the layman; coming from the JSC, it is plain embarrassing.' Full Business Day editorial Die Burger: 'The JSC decision did everything but clear the question marks around Hlophe. It also damaged the credibility of the JSC. While the JSC was supposed to consider Hlophe's application to stop the case against him, they summarily found him not guilty. The administration of justice is the biggest loser.' Full editorial in Die Burger