Has he already been tried?

The legal profession is divided over the way Judge Hlophe has been treated

The judges of the Constitutional Court had no option but to go public with their complaint to the Judicial Service Commission about Western Cape Judge President John Hlophe, a prominent legal academic said this week.

University of the Western Cape professor of law Pierre de Vos said that the 11 judges were bound by the Constitution’s requirement of transparency and openness on a matter clearly in the public interest.

De Vos’s comment came against the background of a possible counter-complaint by Hlophe’s legal team, headed by prominent advocate Dumisa Ntsebeza. This week Hlophe’s lawyers released a statement condemning the court for abusing its judicial authority by publicising its complaint against Hlophe.

On Wednesday night Hlophe, speaking through his attorney Lister Nuku, slammed the judges’ actions as “unprecedented” and amounting to “an abuse of the judicial authority conferred on them by the Constitution”.

Their objections hinge on the fact that the court had not yet prepared a statement detailing its allegations for the JSC to consider at the time it announced its complaint to the media.

Although the court provided no details it is understood that it has alerted the JSC to an alleged breach of judicial protocol by Hlophe in that he tried to influence two Constitutional Court judges sitting in a case involving ANC president Jacob Zuma.

Black legal organisations closed ranks around Hlophe this week, adding their voices to a chorus of criticism about the court’s conduct.

Prominent among them was Advocates for Transformation (AFT) chairperson advocate Patric Mtshaulana, who told the Mail & Guardian: “One must distinguish between the complaint that has been put [forward] and the manner in which that was done.”

“It was not appropriate for the Constitutional Court to have issued a statement in which they say a complaint has been issued when in fact they are still preparing a complaint.”

Adding his voice to the barrage of criticism was University of Cape Town administrator and lawyer Paul Ngobeni, who told the M&G that the Constitution enjoined the court to consider the constitutional imperative to consider international and foreign law in dealing with an unprecedented situation.

“The matter involved egregious flouting of the United Nations’ Basic Principles on the Independence of the Judiciary,” Ngobeni said.

“Principle 17 provides that any charges or complaints ‘made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure’ and that the ‘examination of a complaint of judicial misconduct at its initial stage shall be kept confidential, unless otherwise requested by the judge’.”

De Vos disagreed. “It would have come out anyway. It is important that the public not think something is hidden,” he said.

Last Friday 10 commissioners from the JSC met near Johannesburg’s OR Tambo Airport for an emergency session on the Hlophe issue under the chairmanship of Supreme Court of Appeals Judge President Craig Howie. Chief Justice Pius Langa returned to South Africa on Wednesday after a trip to the United Kingdom.

It has been suggested that Langa, as one of the complainants, is precluded from hearing the matter.

Ngobeni said the judges should apologise or face impeachment for violating Hlophe’s human rights.

“The litigants before Hlophe have the same rights as the litigants before the Constitutional Court judges. If these judges can show such cavalier disregard for international law and our Constitution, what hope do persons such as Mr Zuma have of a fair outcome [to his trial]?”

De Vos countered that such objections were another case of putting procedural arguments ahead of whether Hlophe had a case to answer.

“This abdicates from the real issue of the merits of the case,” he said. But he conceded that it would “probably” have been better to lodge the complaint before going public. A delicate balancing act was needed between protecting Hlophe’s rights and preserving the independence and integrity of the Constitutional Court.

But Mtshaulana was adamant that the reputation and status of the highest court in the land should be safeguarded. “The Constitutional Court is the one institution which our people look up to,” he said. “It is the hope of everyone.”

“Even if there is a mistake made in the manner of reporting the matter, we cannot afford ... to have that institution tarnished,” said Mtshaulana.

He said the judges of the Constitutional Court were “very responsible people” and that he was sure that as the Hlophe saga unfolded it would become clear why they had acted as they did.

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