Are Concourt judges on fast track toward impeachment?

I hate to tell the Constitutional Court judges “I told you so!”

Within days of the Constitutional Court judges’ publicising of their allegations against Judge John Hlophe, I wrote an open letter in which I seriously questioned their wisdom.

I pointed out that the complaint was highly flawed and riddled with procedural irregularities. I argued that the proper procedure that the Constitutional Court judges should have followed is a well-established one.
Simply put, it required that the complainants submit to the Judicial Service Commission (JSC) a written statement or complaint, made under oath, outlining all the allegations.

The JSC would then give the “accused” person an opportunity to defend himself. It is only when the accused is “found guilty” of the alleged offence that the matter can then be made public. The rationale for this approach is simple—it ensures that those accused, and by virtue of their standing, are not unduly prejudiced by untested allegations against them, and that their integrity should remain intact pending the outcome of the inquiry.

Judicial independence requires nothing less than that—a judge should not be driven from the bench by a lynch mob based on mere gossamer and unproven allegations. Anyone violating that precept commits “gross misconduct” under our Constitution.

Hlophe’s detractors smelled blood and wanted nothing less than Hlophe’s immediate resignation. My argument was then ridiculed and characterised as a simplistic apologia for Hlophe’s alleged misconduct.

Needless to state that the ensuing firestorm of controversy forced Hlophe to go on extended leave while his lawyers were contemplating their next legal strategies. Even Hlophe’s highly competent lawyers were not safe from the self-anointed “constitutional experts”, who launched vitriolic personal attacks on them simply because they are black.

It was alleged that Hlophe was “fishing on dry ground” and his legal team vilified by these “experts” as less competent than second-year law students whom, the “expert” said, he would not hire even to get him off a traffic offence. It was boldly predicted by these esteemed legal minds that Hlophe would be “laughed out of court”. Hlophe eventually sued his accusers and received both a full hearing and a stunning victory over his detractors.

Ironic twist
For most objective observers, the series of actions by the Constitutional Court judges against Judge President Hlophe had all the hallmarks of an orchestrated lynching. It was a Gadarene rush to condemn a judge for comments allegedly made in a private conversation with his judicial colleagues. Above all else, it was a disgraceful violation of the constitutional rights of not just an ordinary citizen by another, but a violation of the law by the judges of the highest court in the land.

That much is perfectly clear from the judgement of Justice Mojapelo in Hlophe’s favour. In short, the Johannesburg High Court declared that the publication by the Constitutional Court judges of untested allegations of gross misconduct against the Honourable Judge President Hlophe on the basis of ex-parte representations by two judges of the Constitutional Court is unlawful; that the impugned action unreasonably and unjustifiably violated the judge president’s constitutional rights to dignity, his right to be heard prior to and in relation to such publication, and his right to equality.

Given that the high court did not terminate the JSC proceedings, what are the implications of the court ruling and what is the likely progress of the case, from here on out?

In an ironic twist, Hlophe can and will now turn the tables on his accusers and the JSC and the picture does not look pretty for them. The only issue on Hlophe’s counter-complaint against these Constitutional Court judges is whether their conduct as found by the high court is tantamount to “gross misconduct” and as such, grounds for their impeachment.

I am afraid the answer is crystal clear and in the affirmative.

Mind you, the JSC is not allowed to second-guess or countermand the ruling and findings of the high court on the admitted facts. In the Constitutional Court judges’ statement against Hlophe, they claimed all courts in our country “will not yield to or tolerate unconstitutional, illegal and inappropriate attempts to undermine their independence or impartiality”. Well, they have collectively violated Hlophe’s security of tenure, which has been recognised as the first of the essential conditions of judicial independence.

It is gross misconduct for any judge to issue statements geared towards provoking public condemnation of another judge or making it untenable for that accused judge to continue service as a judge. They knew the principle that a judge is removable only for cause, and that cause must be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard.

As a result of the Constitutional Court’s public complaint against Hlophe and the vitriolic attacks against him by members of the Bar, law professors, politicians and members of other lunatic fringe groups, Judge President Hlophe has been effectively sidelined or removed from his judicial position on an interim basis.

Hlophe is entitled to argue that security of tenure is violated not just when a permanent removal takes place, but equally by a temporary or limited removal, or a day-to-day removal of indefinite duration that follows irresponsible public disclosure of complaints against a sitting judge. In other words, the consequential effect of temporarily removing a judge from judicial duties is as invidious and must be precluded equally with a permanent threat.

If left unchecked, the unprecedented action of the Constitutional Court judges will lead to all kinds of evils that will destroy our entire judicial system or constitutional order. It sends a clear message to all disgruntled litigants and anti-transformation elements that the easiest way to evict a judge from the judicial scene is to create a firestorm of controversy by publicly announcing the filing of a complaint alleging the most serious, albeit unsubstantiated, claims as the Constitutional Court judges have done.

Any ability by any party to unilaterally orchestrate a media frenzy and adverse publicity calculated to remove a judge from judicial duties (even through consequential effect), either permanently or temporarily, runs afoul of the basic constitutional principle of judicial independence. This is even worse when the culprit is the nation’s highest court. Hlophe has already established a case for impeaching the Constitutional Court judges. He was subjected to public condemnation on the basis of a “press statement” by the Constitutional Court judges when the latter failed to follow proper procedures for ensuring an expeditious filing and resolution of the complaint by the JSC.

The JSC compounded the violations of Hlophe’s rights by bending over backward and affording the Constitutional Court judges more time to perfect their complaint, even when it became clear that they had acted unlawfully. Our Constitution codifies our political will of entrenching the values of human dignity, equality, freedom, democracy, and the rule of law. When a tribunal or investigative body such as the JSC furthers an unlawful activity as was done in Hlophe’s case, the “abuse of process doctrine” may enable Hlophe to demand a dismissal of the entire complaint.

‘Gross misconduct’
To borrow from criminal law concept, the general rule is that the unlawful, unconstitutional, unfair or oppressive treatment of an accused by the prosecuting authorities disentitles the state to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits, but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court.

It is accepted that where there has been such grave misconduct on the part of the police, executive or prosecution that undermines or threatens the rule of law, the court may and sometimes should intervene to stop the prosecution, even where a fair trial can take place. In that case, the court acts so as to show its disapproval of the impugned misdeed and that it will neither tolerate such conduct nor appear to endorse it.

Where the human rights of the accused have been violated, the tribunal is under a duty not to engage in further continuation of the violations. The JSC cannot find the proven or admitted violations of Hlophe’s rights, especially his security of tenure, to be anything less than “gross misconduct,” which is an impeachable offence.

The case against Hlophe will collapse on several legal theories I shall expound at a later point. Briefly, “gross misconduct” must almost always relate to the manner in which the Judge is performing or failing to perform the duties of his office. The allegations against Hlophe are merely that he went on a personal frolic and engaged other judges in a debate in which he sought to persuade them to rule in Zuma’s favour. None of these alleged improprieties amount to an abuse or violation of constitutional judicial powers entrusted to him, and no one has suggested that he abused his office in carrying out the alleged activities.

Further, there is an iron-clad judicial privilege that Hlophe’s accusers have to overcome.

First, Section 8 of the United Nations Basic Principles on the Independence of the Judiciary provides, inter alia: “In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly ; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.”

Contrary to the naïve assumptions of most people, judges do not forfeit their right to freedom of speech when they assume office.

There is no allegation that Hlophe offered a bribe, threatened to harm other judges if they did not acquiesce to his entreaties or that he exerted pressure and authority on anyone. Rather, the allegations remain that he “gave the impression” that he “preferred” an outcome in Zuma’s favour. This occurred in a private confidential conversation with another judge while Hlophe was supposedly on a personal frolic.

That is too slender a reed on which to hang the monstrous case of gross judicial misconduct.

Second, guideline number 19 of the Judicial Ethics for South African judges also states that a judge should respect the “confidences of colleagues” and expressly recognises that “private consultations and debate are inherent in the functioning of a judge; and often a mere sounding board is helpful. It goes without saying that confidentiality is also essential for this benefit of collegiality to function.”

Hlophe had every right to expect that the other judges would abide by these rules and would welcome his “debate” with them and respect the confidential nature of such discussions. Moreover, there is no proof that Hlophe has any supervisory authority over the judges he allegedly targeted to influence.

And finally, the JSC is bound by the ruling of the high court. Because the filing of the complaint against Hlophe was seriously contaminated by unlawful conduct of his accusers, the doctrine of abuse of process prevents the JSC from proceeding on the merits of the Constitutional Court judges’ complaint. To do otherwise would bring the administration of justice into serious disrepute.

Paul Ngobeni is deputy registrar of legal services at UCT and writes in his individual capacity

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