In their new book, Precedent and Possibility: The Use and Abuse of Law in South Africa, Dennis Davis and Michelle le Roux write of the disturbing parallels that can be drawn between the constitutional crisis of the 1950s and the recent controversies in which the judiciary has been embroiled.
Consider the following. In 1957 Chief Justice Centlivres retired. The senior judge whom convention dictated should have been appointed chief justice was Oliver Schreiner, the great liberal judge of the time. But he was unacceptable to the National Party and Henry Fagan was appointed for only two years. When Fagan retired, the Nats appointed their chosen person — LC Steyn.
Last week President Jacob Zuma overlooked senior judge Deputy Chief Justice Dikgang Moseneke and appointed Judge Sandile Ngcobo, who has less than two years left before he must retire. In the wings is the judge president of the Western Cape, John Hlophe.
Could history repeat itself? Moseneke, like Schreiner a half a century before, is a fine judge, hugely respected for his legal achievements and in Moseneke’s case a steadfast commitment to substantive democracy, which resulted in his being imprisoned at the age of 15 for political opposition to racist rule.
By contrast, Hlophe is the champion of naked racial populism, exemplified by his vague calls for the Africanisation of the law, the constitutional implications of which have never been made clear, and most recently by his outrageous statement that he will never shake the hand of a white man — in this case Chief Justice Pius Langa, one of the true legal heroes of the fight for transformation, whose record was endorsed recently by no less than Zuma in his speech to the judiciary.
There is this significant difference — Judge Ngcobo is not Judge Fagan. He is a most distinguished jurist, author of a number of magisterial judgments that have greatly advanced the cause of constitutional democracy in this country. In particular, unlike Hlophe, Ngcobo understands the implications of welding the Constitution to customary law — as is illustrated to great advantage in his insightful judgment in the Bhe case, which dealt with rights of intestate succession within the context of indigenous law.
But he has less than two years left. Had Moseneke been appointed, as seniority and his stature dictated, he would have been chief justice for at least six years, a sufficiently lengthy term to put an end to the Hlophe campaign. Adding to the confusion is that, if the decision was based upon seniority in the Constitutional Court, Judge Zac Yacoob should have received the presidential nod.
Ngcobo now has to pilot the judiciary into calmer waters but his task may be rendered more problematic if Hlophe is appointed to the Constitutional Court.
Of course, he needs to escape impeachment, which could happen soon if the Judicial Service Commission (JSC) decides that there is no prima facie case against the judge. Already it is being suggested that, in the light of the evidence given to the JSC, it is impossible to decide conclusively whether Hlophe had the relevant intention to influence the judicial process.
Leave aside the ludicrous claim that the direct testimonies of judges Bess Nkabinde and Chris Jafta about their conversations with Hlophe are hearsay. The arguably plausible argument offered by Hlophe’s supporters is that, faced with competing versions of events, the JSC cannot decide this case. Thus the JSC, it is argued, should find that Hlophe behaved wrongly in discussing the Zuma case with the two judges but was not guilty of the gross misconduct sufficient to impeach a judge.
But this case is not unique. Judges are confronted by these dilemmas in a significant number of trials over which they preside. The task is to test the competing versions by searching for independent corroboration of the prosecution version in particular and then apply clearly established rules for drawing inferences from the evidence so accepted.
In this case, whatever Jafta may have said regarding his uncertainty regarding Hlophe’s exact intentions, Nkabinde had no such doubts and her version is supported in significant aspects by Jafta. By contrast, Hlophe has offered different versions of events — that is, between his sworn statements, interviews with the press and his oral testimony.
That is why cross-examination of all witnesses becomes vital. If, for example, the judge president’s version is shown after cross-examination to be clearly unreliable, then — as occurs daily in our courts — an adverse conclusion regarding his intention can be made.
It is relevant to remember that the test for a prima facie case is whether, in the absence of further evidence from the accused, which raises legal doubts, the prima facie case converts into a conclusive case. Without proper cross-examination of all the witnesses, the public will be entitled to conclude that there was a prima facie case against Hlophe, which has not been properly answered.
Failure by the JSC to exhaust the indicated legal process will add fuel to the speculation that principles of legal process, accountability and transparency count for naught in our rush to repeat history.