/ 13 June 2008

Don’t let them lynch Hlophe

A Johannesburg Bar member protests against the attack on Judge John Hlophe on insubstantial evidence.

Beneath the huff of those of the Constitutional Court judges, who subscribed to the media statement issued from that quarter on May 30 2008 (published in the Mail & Guardian on June 6) on Judge John Hlophe, lies prostrate several constitutional values. They are bruised and battered beyond recognition. Their worth has been lost in the undignified public lynching of a man, the basis for whose notoriety seems more imagined than factual.

At the risk of being maligned by my peers and a scandal-enthused public, I have decided to speak out in defence not of a man, but of a principle. This is no time for sycophancy, masquerading as professional discretion, and a feigned indignation against an ostensibly errant judge with a view to currying favour with the masses in a popularity contest before a public that is so starved of principled leaders that any pretence of a principled stand will do.

I am disappointed in the Constitutional Court media statement of May 30. Constitutional Court judges are supposed to uphold the values enshrined in our liberal Constitution. I fear they have elected instead to trample on the Cape judge president’s right to human dignity by issuing a media statement about an allegation that Hlophe has ‘approached some of the judges of the Constitutional Court in an improper attempt to influence” that court’s pending judgements. The statement is long on condemnation and short on fact.

What was the nature of this ‘approach” to which the statement refers? What were the circumstances in which ‘some of the judges” of that court were ‘approached”? What precisely did Hlophe convey to them? How many judges were ‘approached”? Is this a complaint by the judges who were ‘approached” or by the entire Constitutional Court contingent? Was an explanation sought from Hlophe regarding his intentions before issue of the media statement?

The statement is silent on all these facts. All we have is a conclusion that Hlophe attempted improperly to influence judgements of that court. Having acted as a judge on a number of occasions, I know that judges routinely discuss with their colleagues cases in which they preside. From the media statement of the Constitutional Court judges, it is impossible to say on what basis it is alleged that Hlophe crossed the line, as it were, in doing so.

I am disappointed also in the leaders of the organised legal profession — particularly the Cape Bar Council and the General Council of the Bar. At a time when they should be standing up for what is right, they have joined the out-of-tune chorus calling effectively for Hlophe’s head.

But what is the basis for this chorus? They do not know because the Constitutional Court judges involved in the release of the media statement have not even told the Judicial Service Commission (JSC) yet. They have until June 13 to do so.

Here is another issue I find worthy of concern. The JSC says in its media statement of June 6 that it is not yet in possession of the ‘facts underlying the complaint” because the Constitutional Court judges concerned ‘have been unable” to provide them. If that is so, then what ‘complaint” has been lodged with it? Does that not mean the judges have submitted what is effectively a conclusion and are now looking to the JSC to endorse that conclusion on facts they are yet to find?

By issuing a media statement before lodging a complaint based on facts, the judges of the Constitutional Court have created fertile soil for speculative analyses. Now analysts — senior members of the Bar and even professors of law — appear on television and speak of Hlophe’s past encounters with the JSC. That the JSC found his conduct on those occasions not so serious as to warrant his head on a platter seems conveniently forgotten.

Now, because of infractions for which they believe Hlophe should have been impeached, but was not, leaders in the legal profession and the public (guided by the Constitutional Court’s statement and historical events that should have no bearing on this case) want him lynched.

This is wrong. A complaint against him to the JSC is, of course, acceptable, but I believe Hlophe’s right to human dignity was harmed by the manner in which the judges of the Constitutional Court elected to deal with the allegations they are making against him. Newspaper columns, magazine opinion pieces and the public’s comments on the internet, radio and newspapers leave one in no doubt that Hlophe has already been condemned: and all this on the basis of one media statement released by Constitutional Court judges, who conclude, without giving us facts, that Hlophe has acted improperly.

What makes this charade even more worrying is the assumption that judges of the Constitutional Court would not have taken lightly the decision to go public with the allegation. This assumes, improperly, that if the Constitutional Court judges say it is so, then it must indeed be so. On this reasoning there would be no point in Hlophe even making submissions to the JSC in his defence.

Consider this: who would ultimately preside in a case if Hlophe decided to sue the Constitutional Court judges for the violation of his right to human dignity and the case ends up before the Constitutional Court?

Everyone who stands for what is right — black and white — ought to apply their minds to the facts of this case (if and when they come out) and make a stand instead of cheering on a public lynching based, evidently, on Hlophe’s past. You may be next.