The two decisions of the Supreme Court of Appeal (SCA) to declare invalid the decision of the Judicial Service Commission (JSC) not to proceed with the inquiry into the conduct of the Western Cape judge president, John Hlophe, is not good news for the judge or for the reputation of the JSC.
Recall that the JSC, after hearing evidence from two Constitutional Court justices, Chris Jafta and Bess Nkabinde, and from Hlophe, decided to close the inquiry without any cross examination of the witnesses. It stated: “The CJ’s statement says what was communicated to Jafta JA was that the matters must be decided in favour of Mr [Jacob] Zuma. That is not what Jafta JA said in his evidence. As pointed out, at best, he said he had made that inference. On a proper analysis of her evidence, this is what Nkabinde J also said. Having regard to the totality of the facts and the context, we do not accept that that is the only reasonable inference to be drawn. We cannot reject Hlophe JP’s contention that he did not attempt to improperly attempt to influence the two judges to decide the cases in Mr Zuma’s favour.”
In the case brought by Freedom Under Law the SCA carefully examined the competing versions of the two Constitutional Court judges and that of Hlophe. The two justices claimed that Hlophe spoke to them at separate meetings about a case involving Zuma. Both justices testified that Hlophe claimed that Zuma was being persecuted in similar fashion to the way he had been treated, that the SCA judgment, which was the subject of the Zuma appeal, was incorrect and, in the case of Jafta, he was the last hope. Hlophe admitted that he met the justices but denied, in significant part, their account of the meetings and that he had sought to influence their decision.
The JSC found that Nkabinde’s evidence was not relevant to the key question of whether Hlophe had sought improperly to influence her.
The SCA made the obvious finding that it was irrational to disregard the justice’s own inference drawn from her meeting Hlophe, namely that he was trying to influence her improperly. The SCA also held that to find that it was unable to determine who was to be believed without testing the competing versions by way of cross examination created the only result possible — being that the JSC could never find against Hlophe. It thus created the only result possible by its irrational refusal to allow cross examination.
The only question that emerges from this compelling judgment — written by Judge Piet Streicher and signed on to by Judges Fritz Brand, Azhar Cachalia, Leonie Theron and Willie Seriti is how a group of lawyers of sufficient distinction that they hold senior office as members of the JSC could arrive at a so palpably incorrect approach. It is surely fair to conclude that this judgment finds that there is a prima facie case which Hlophe must answer. The second judgment concerned a case brought by the Western Cape premier, Helen Zille.
Here the SCA gave short shrift to the argument that the JSC could proceed to consider impeachment of a judge of the court in the province of which she was the premier without her being in attendance. As the JSC was thus improperly constituted when it decided not to proceed against Hlophe it had, in effect, made no decision.
Of greater interest is the SCA’s insistence that such a serious allegation of judicial misconduct must be dealt with properly by the JSC. Sensibly the JSC has chosen not to appeal. Hlophe has not yet indicated his decision. An appeal is a step fraught with difficulty. Only four of the present justices could hear such an appeal.
Could the president then appoint a series of acting judges to make up a quorum on the Constitutional Court? There seems no basis in law for such a move, particularly when there is comparative authority to the effect that, when the highest court is not competent to hear a case, the decision of the next highest
court stands.
There is a suggestion that the JSC is uncertain about whether to pursue the matter under the new system for disciplining judges which was introduced after the JSC had dealt with the complaint against Hlophe.
It is doubtful that the new legislation has retrospective effect. Presumably submissions from the various legal teams in this case will assist.
This is a case where senior judges are on competing sides. The charge is of the gravest order — a judge is accused of seeking improperly to influence justices sitting on a case involving the future of a man who became president of the country. If Hlophe’s version stands up to evidential scrutiny he would have been the subject of a hugely damaging attack by members of the highest court. This is a cause for concern not unequal to the contrary finding that Hlophe improperly sought to influence the justices. From the way Streicher summarised the evidence it is unlikely that this is a case of a genuine misunderstanding.
As we have learned from the arms deal debacle, refusing to deal with troubling matters of public conduct in an open, transparent and fair way only guarantees that the allegations remain in the public domain. Understandably this is a difficult and fraught case.
But it remains part of the mandate of the JSC. For the sake of the integrity of the judicial institution, it is high time this dispute was finally dealt with in an open and justifiable manner.