Allister Sparks Published: 2009/09/02
THE decision by the Judicial Service Commission (JSC) not to refer the complaint of gross misconduct against Cape Judge President John Hlophe to a formal hearing and to find him not guilty is disturbing, but hardly surprising. It has been apparent from the start of this drawn-out saga that there has been a deep reluctance in some legal circles to have a black judge become the first member of the South African bench ever to be impeached.
That the members of the reconstituted JSC have not found it easy to avoid such an outcome is evident from the protracted nature of the proceedings and the divisions within the commission, which has delivered a split finding, with four of the 10 members who constituted the final panel dissenting.
Even setting out the majority’s reasons appears to have been a difficult job. The JSC announced on August 15 that it had reached a decision and would make its reasons public on Friday, August 21. But that Friday came and went with no word from them. Only a week later, on August 28, did they deliver the reasons — 13 days to write up the reasons for a decision already taken.
All this is disturbing, because the impression of a cop-out that a large section of the public now has weakens confidence in the JSC, and with that also in the judiciary, which the JSC effectively appoints, and thus ultimately in the sanctity of the constitution, which the judiciary must interpret and defend.
The chairman of the General Council of the Bar, Patrick Mtshaulana, has expressed relief that the dispute is “over” and that we can now look to the future “and rebuild the unity of the judiciary and the profession”. He could not be further from the mark. Sweeping controversial issues under the carpet is not the way to end them or to rebuild the future. This issue should have been referred to a full and formal hearing to restore public confidence.
The nub of the Hlophe case turns on whether or not he tried to influence two Constitutional Court justices, Chris Jafta and Bess Nkabinde, while the court was considering an appeal in the Jacob Zuma corruption case, to decide it in Zuma’s favour.
That Hlophe flew to Johannesburg to meet the two judges and discuss the Zuma case with them is common cause. This in itself was improper, for it is established legal practice in SA that judges hearing an appeal do not discuss it even among themselves while the case is being heard, and never with outsiders. But at issue here is that Hlophe’s version of his discussion with the two justices differed from theirs.
Although Jafta and Nkabinde concede that Hlophe didn’t ask them in so many words to find in Zuma’s favour, they both told the JSC that was the conclusion they drew from the issues he raised and the points he made. When they reported their conversations to the other members of the Constitutional Court, they, too, unanimously drew the same conclusion. But Hlophe denied that he acted with any such intention, and also denied some of the specific aspects of Nkabinde’s and Jafta’s evidence.
The six members of the JSC majority concede that the two versions are irreconcilable. “Clearly, the version of one of them on those disputed issues is not correct,” they state in their findings. The critical point surely is: Which one is false?
But, astonishingly, the JSC majority says in its findings that this doesn’t matter.
They accordingly rejected the Constitutional Court’s argument that the matter should be referred to a formal hearing where cross-examination would help resolve the disputed facts.
Justifying their decision, they have this to say: “We would be naive if we believed that Hlophe will not persist in his denial that he had any such intention, no matter how extensive or intensive the cross-examination on that point.”
This is astounding. Here are the guardians of our judicial system in effect saying that cross-examination is worthless because the person being questioned will stick to his story.
Such a contention strikes at the very heart of our judicial system, for pretty well every case that ever comes to court features conflicting versions of fact, and cross-examination is the established method in our adversarial system of determining which version is credible and which is not.
The one that is deemed not credible is thrown out, and the party held to have been untruthful is prejudiced. The notion that credibility is irrelevant in a legal dispute certainly strikes this layman as being revolutionary.
This is also the issue on which the four members of the dissenting minority, which happened to include the only two judges on the JSC panel, the Judge President of the Supreme Court of Appeal, Lex Mpati, and the Judge President of the North and South Gauteng High Court, Bernard Ngoepe, split with the majority.
In a crisp one-and-a-half-page minority finding, the four state bluntly: “There are disputes of fact which can only be resolved through a formal hearing…. It would be an incorrect approach to resolve a dispute of fact against a complainant without resorting to tested evidence.”
Another key point of disagreement between the dissenting minority and the majority of six — which included three of Zuma’s recent appointees — was the majority’s contention that even if Jafta’s and Nkabinde’s testimony were accepted as the correct version, the fact that they had only drawn inferences from what Hlophe said to them and that he had not asked them in so many words to find in Zuma’s favour was not enough to amount to “gross misconduct”.
The majority finding implied that there may have been a lesser degree of misconduct on Hlophe’s part. “His conduct may have been unwise, ill-considered, imprudent, not thought through,” their finding states. “But in and of itself it is not gross misconduct within the meaning of the constitution.”
The minority disagreed with this emphatically. “The minority attaches a great deal of weight to the fact that the real charge against Hlophe is not that he improperly influenced, but merely attempted to do so. Such an attempt would, if proved, amount to gross misconduct,” they said.
The question now is whether Hlophe, having survived this issue, will go on to become a member of the Constitutional Court and, in due course, perhaps even its president and the country’s chief justice.
He is on a short list of 22, whom the JSC will begin interviewing in a week’s time. The JSC will choose seven to present to Zuma, who will name four to fill vacancies caused by justices who will retire next month.
All who value the sanctity of our constitution, the founding document of our new democracy forged through our unique moment of national consensus, when all races and all parties came together in 1994 to end apartheid and launch a new country, will be hoping that the JSC does not include Hlophe among its selected seven.
Even if Hlophe’s name does go forward, I have difficulty believing that Zuma, who has been at such pains lately to calm the turbulent waters of recent years and try to recapture some of the spirit of national unity of the Mandela years and build better relations across political divisions, would appoint such a controversial and divisive figure to the Constitutional Court.
To do so would be disastrous for his own carefully cultivated new image, at home and abroad. -
Sparks is a former editor of the Rand Daily Mail and a veteran political analyst. His fortnightly column appears regularly on Business Day’s website.
September 2, 2009
Democracy, Featured, government