Chief Justice Pius Langa has not ruled out the possibility of a formal complaint about remarks made by Western Cape Judge President John Hlophe.
Chief Justice Pius Langa has not ruled out the possibility of a formal complaint about remarks made by Western Cape Judge President John Hlophe last week.
Langa on Thursday declined to comment on Hlophe’s remarks to the Mail & Guardian that the Constitutional Court had “sold out”, and his insistence that he would not shake Langa’s hand, describing it as the “hand of a white man”.
Asked during an interview at his chambers in the Constitutional Court whether Hlophe’s latest attack on him warranted a formal response by the Judicial Service Commission (JSC), Langa told the M&G: “If it does I am still considering my options.”
Hlophe has claimed that several comments he made during a dinner interview in Cape Town last week and reported by the M&G were fabricated. He has specifically denied saying that he would not shake Langa’s hand, and denied telling a story about how Zulu King Goodwill Zwelithini was sent into exile to protect him from possible assassination by Inkatha Freedom Party leader Mangosuthu Buthelezi.
Hlophe has not denied describing the Constitutional Court as “green robes, white justice”, or saying that the nomination of Judge Sandile Ngcobo to succeed Langa would give President Jacob Zuma’s enemies in the judiciary “time to regroup”.
Langa didn’t want to be drawn any further, citing the ongoing JSC inquiry into the battle between Hlophe and the judges of the country’s highest court.
“You know I don’t comment on matters pertaining to the complaint by Concourt judges and the counter-complaint by the judge president. The reason I don’t comment is these are controversial enough. We reported our complaint to the Judicial Service Commission and that is forum to deal with it,” he said.
Thirteen acting and permanent judges of the Constitutional Court, including Langa, have filed a complaint with the JSC alleging that Hlophe had attempted to “improperly influence” judges Bess Nkabinde and Chris Jafta in a case that involved President Jacob Zuma.
Hlophe in turn laid a complaint against the judges for publishing their complaint to the media before giving him a hearing.
The JSC has recently completed the investigatory phase on both complaints, and the JSC three-man team headed by Gauteng High Court Judge President Bernard Ngoepe is due to present its findings to the JSC this Saturday.
Langa also revealed that discussions are under way to re-look at the 15-year term limits imposed on Constitutional Court judges.
“There is talk about the court’s restructuring; with that kind of restructuring the tenure of judges may change, and it’s only the Constitutional Court that is affected ... so you can imagine if there are changes there, maybe we are the last batch to go out [in this way],” he told the M&G.
‘We have now found quieter waters’
The Constitutional Court is about to lose Langa and judges Yvonne Mokgoro, Kate O’Regan and Albie Sachs in October.
The retirements, which represent the biggest shift in the composition of the court since 1994, have been closely watched and the JSC has produced a shortlist of 25 candidates vying to replace the four judges.
Langa, however, expects the philosophy of law built over the years by the court, initially under the stewardship of former Chief Justice Arthur Chaskalson, to stay intact.
“I don’t think that there will be perceptible changes jurisprudentially, and one reason for that is we have not lost all eleven judges at the same time,” Langa said.
Although he said he did not wish to “speculate” on how long chief justice nominee Sandile Ngcobo would be in the top post, Langa said President Zuma had consulted him in his capacity as JSC chair before he in turn informed the JSC.
“The JSC will discuss it ... there may be other nominees ... we will interview them and make known our views”, he said.
Langa declined to say, however, whether that process really gave expression to the constitutional requirement for the president to consult: “If someone were to challenge the process of consultation, for instance, it would have to come to the Constitutional Court,” Langa said.
He also said that no convention has ever been in place at the Constitutional Court that would have seen his current deputy, Dikgang Moseneke, succeed him as he succeeded Chaskalson.
“I can’t say there has been a convention. I was deputy chief justice and it pleased the president [Thabo Mbeki] then to nominate me as the next chief justice, but I did not think there was that entitlement; the Constitution does not create that entitlement.
“What I would have preferred, or what I would have liked, will forever be my own personal preference,” he said.
Asked what personal qualities were important in replacing the judges, he said: “Integrity is the most important. Personal courage perhaps less so, because intellectual honesty should take care of that. You say what you believe, and you stand by it. But courage is important, because you have to have the courage to say when you are wrong, to take a position, but to be persuadable.”
He urged South Africans, including the media, to guard our democracy jealously.
Langa said he was optimistic about the future of the judiciary, despite recent battles with the government and among judges, adding “the centre will continue to hold”.
“It has been about drawing boundaries,” he argued, “boundaries to executive power, to judicial power.”
“It has been stormy, but I think we have now found quieter waters.”
But he added a caveat: “I always warn that in order to keep our democracy alive and stable, we all need to be vigilant always to identify things which may be going awry.”
The M&G spoke to Langa at length about his time on the court, his formative years, crucial debates around the transformation of the courts, and the role of African precedent to the Constitutional Court. The interview took place at the end of a long day in court for Langa, and overran our print deadline. We will carry a more detailed article in next week’s edition.