IN THE HIGH COURT OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT

HELD IN JOHANNESBURG

CASE NO:

In the matter between

HLOPHE, MANDLAKAYISE JOHN - Applicant

and

JUDICIAL SERVICE COMMISSION - First Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT - Second Respondent

JUDGES OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA - Third Respondents

KROON AJ - Fourth Respondent

JAFTA AJ- Fifth Respondent

FOUNDING AFFIDAVIT

I, the undersigned,

MANDLAKAYISE JOHN HLOPHE

do hereby make an oath and say that:

Introduction

1 I am the

1.1 Judge President of the Cape High Court in the Republic of South Africa although I am currently on special leave,

1.2 applicant in this application,

1.3 respondent in impeachment proceedings initiated by the third, fourth and fifth respondents before the Judicial Service Commission ("the JSC") and which are still pending before that body,

1.4 complainant before the JSC against the third, fourth and fifth respondents for issuing a public media statement on untested allegations of judicial misconduct against me thus in my submission unreasonably and unjustifiably violating my right to human dignity,

1.5 appellant in proceedings currently pending before the Constitutional Court in which I appeal against the findings of the Supreme Court of Appeal.

2 The facts to which I depose herein are within my own personal knowledge, save where it is otherwise stated or the context indicates otherwise, and are, to the best of my knowledge and belief, both true and correct.

The Object of this Application

3 In this application I ask this Court, on an urgent basis,

3.1 to make a declaratory order that the impeachment proceedings currently underway before the JSC at the instance of the third, fourth and fifth respondents are unlawful and thus void ab initio, and to that end

3.2 pending the final determination of the constitutional dispute that I have referred to the Constitutional Court by way of leave to appeal in terms of Rule 19 of the Rules of the Constitutional Court, interdict the JSC from

3.2.1 proceeding with its deliberations aimed at making a finding of gross misconduct against me in those impeachment proceedings,

3.2.2 proceeding with its deliberations aimed at advising the President of the Republic of South Africa to suspend me from performing my judicial functions and, specifically, my functions as Judge President of the Cape High Court, and

3.2.3 performing any function that in any way advances those impeachment proceedings or any other proceedings affecting me or my rights adversely in any way;

3.3 in the alternative to the relief sought in paragraph 3.2 above, interdict the JSC from performing any of the functions mentioned in paragraphs 3.2.1, 3.2.2 and 3.2.3 pending the final determination of my application for the review, correction and setting aside of the JSC's impeachment proceedings against me.

4 In addition to the interim interdict, I ask this Court to issue a rule nisi, operating as an interim order, calling upon the JSC to show cause, if any, on a date to be determined by this Court, why the impeachment proceedings should not be reviewed, corrected and set aside as being unlawful and thus void ab initio. The review application is not sought on an urgent basis but the rule nisi is.

5 The basis for each relief is explained later in this affidavit.

The Respondents and Application for Leave to Institute Proceedings

6 The first respondent is the JSC, a body constituted in terms of section 178 of the Constitution of the Republic of South Africa, 1996, Act 108 of 1996 ("the Constitution") with powers and functions conferred on it by the Constitution and the Judicial Service Commission Act 9 of 1994. Its seat appears to be at the Constitutional Court, Constitution Hill, Braamfontein. The relief in these proceedings is sought solely against the JSC.

7 The second respondent is the Minister of Justice and Constitutional Development of, care of, The State Attorney Pretoria, 8^th Floor Bothongo Heights, 167 Andries Street, Pretoria. He is the constitutive member of the JSC referred to in section 178(1)(d) of the Constitution and without the presence of whom the JSC is improperly constituted. I seek no relief against him. He is joined herein because of an interest he may have in these proceedings.

8 The third respondents are the Judges of the Constitutional Court of, care of, The State Attorney Johannesburg, 10^th Floor North State Building, 95 Market Street, Johannesburg. It is at their instance that the impeachment proceedings against me have been initiated. Pursuant to the provisions of section 5 of the Constitutional Court Complementary Act, 13 of 1995, my attorneys sought leave

8.1 from the Chief Justice to institute these proceedings against all the other Judges of the Constitutional Court,

8.2 from the President of the Supreme Court of Appeal to institute these proceedings against the Chief Justice, the fourth respondent and the fifth respondent, and

8.3 from the Judge President of the Eastern Cape division of the High Court to institute these proceedings against the fifth respondent.

9 Copies of these letters seeking leave are annexed as "MJH1" hereto.

10 The fourth respondent is Jafta JA of, care of, The State Attorney Johannesburg, 10^th Floor North State Building, 95 Market Street, Johannesburg. He is a Judge of the Supreme Court of Appeal and was Acting Justice of the Constitutional Court when the Judges of that Court initiated impeachment proceedings against me.

11 The fifth respondent is Kroon AJA of, care of, The State Attorney Johannesburg, 10^th Floor North State Building, 95 Market Street, Johannesburg. He is a Judge of the Eastern Cape Division of the High Court and is currently Acting Judge at the Supreme Court of Appeal. He was Acting Justice of the Constitutional Court when the Judges of that Court initiated impeachment proceedings against me.

12 As with the second respondent, no relief is sought against any of the third, fourth and fifth respondents either. They have been joined in these proceedings solely for any interest they may have herein.

13 I shall now set out the broad outline of the submissions I make in this affidavit in support of the relief that I seek.

A Brief Outline

14 In this affidavit I shall

14.1 explain why the interdict application is urgent,

14.2 set out the full factual background by which this application is under-pinned, and

14.3 advance the basis for the relief that I seek.

Grounds for Urgency: Interdict

15 On 7 April 2009 I instructed by legal representatives to seek a postponement of the JSC impeachment proceedings because I was medical indisposed and so was in no condition to attend those proceedings, much less participate in them meaningfully. I am based in Cape Town and the proceedings were held in Johannesburg.

16 Later that day I was advised by my legal representatives that the JSC, by majority decision, refused to accede to my request. No reasons were given by the JSC for this refusal. It simply said its reasons would be furnished later in writing. When asked by what majority margin the decision to refuse the postponement was made, the JSC refused to answer that question and indicated that it would do so when giving reasons for its refusal in due course.

17 In the meanwhile, the presiding Chairperson of the JSC informed my legal representatives that the impeachment proceedings would continue with or without me. My legal representatives considered that it would be untenable for them to participate in those proceedings in my physical absence and without instructions from me in relation to what was being said in evidence by the six Justices during their testimony. In the result, the JSC continued without me and my legal representatives and heard oral evidence from the Chief Justice, the Deputy Chief Justice, Justices Jafta, Mokgoro, Nkabinde and O'Regan. This evidence was heard in the afternoon of 7 April 2009 and on 8 April 2009.

18 The JSC provided its reasons for refusing my request for a postponement on account of my ill-health only on 24 April 2009, more than two weeks after the Acting Chairperson had indicated that he would do so. In that letter, the JSC invited me to make written submissions to it as regards my testifying before it and cross-examining the Justices who had already testified by no later than 8 May 2009. A copy of that letter is annexed hereto as "MJH2".

19 In a document titled "Reasons for a Dissenting View" and dated 29 April 2009, a member of the JSC points out that one of the factors that had been considered by the majority in refusing my request for a postponement of the proceedings owing to my ill-health was that some of the JSC members may be replaced by the new administration. According to the dissenting view, the majority was anxious that the impeachment proceedings are heard and finalised by the JSC as currently constituted so that "when they (the new administration) [of Mr Jacob Zuma] start doing their shenanigans after the elections of the 22 April 2009, we [the current JSC] shall be seized with the matter". A copy of the dissenting ruling is annexed hereto as "MJH3".

20 It is my respectful submission that this demonstrates clearly that the JSC's motivation for the hurried conclusion of the impeachment proceedings against me has more to do with political considerations than the public interest and the interests of justice.

21 It also demonstrates vividly that this JSC is anxious hurriedly to conclude its proceedings - culminating as they do in its advice to the national Government or the National Assembly or the President of the Republic of South Africa that I be removed from judicial office - before the new administration takes shape and commences work. I am advised and believe that the new President of the Republic of South Africa is scheduled to be sworn in on Saturday 9 May 2009, the day after the deadline that has been imposed on me by the JSC to make written submissions to it. The timing of this deadline does not strike me as a mere co-incidence.

22 I thus respectfully submit that this application for an interim interdict is urgent.

The Factual Background

23 The basis for impeachment proceedings against me was laid on 30 May 2008.

24 On that date the third, fourth and fifth respondents issued a media statement condemning me for alleged "judicial misconduct". A copy of that media statement is annexed hereto as "MJH4".

25 On that same day they made unsubstantiated allegations of "judicial misconduct" against me to the JSC. The document in which these allegations were contained was titled "Complaint to the judicial service Commission by the Judges of the Constitutional Court". Far from being a complaint, it was in effect an announcement of my guilt without any factual basis. It was also identical to the media statement. I annex a copy of the so-called "complaint" as "MJH5" hereto.

26 It is my respectful view that a full factual background to the impeachment proceedings that I now seek to have interdicted and ultimately set aside is very important in the determination of this case. I say so because both the JSC on the one hand, and the Supreme Court of Appeal on the other, have with respect paid scant regard to these facts. The effect has been the traducement of my complaint and defence, aided in no small measure by the third, fourth and fifth respondents.

27 In articulating these facts, I make reference to Volumes 1, 4 and 5 of the record that served before the Supreme Court of Appeal and ask that this record be read as incorporated herein. The full record will be available at the hearing of the matter if required.

28 For the Court's convenience, I divide my account of the facts into four parts, namely

28.1 those relating to my meeting with Justice Jafta;

28.2 those relating to my meeting with Justice Nkabinde;

28.3 the facts leading up to the issue of the media statement and submission of the so-called "complaint" by the Justices of the Constitutional Court to the JSC on 30 May 2008; and

28.4 the facts leading up to the submission of a further statement by the Judges of the Constitutional Court to the JSC on 17 June 2008.

29 I respectfully submit that these facts make it clear that there was no basis, prima facie or otherwise, for the JSC to conduct a formal enquiry with a view to my possible impeachment.

The Facts: A Meeting with Justice Jafta

30 I had scheduled a visit to Pretoria on private business during March 2008. As I had learned that Justice Jafta, who had previously been an academic colleague of mine at the University of Transkei, had taken up an acting position at the Constitutional Court, I called him a few days before my scheduled visit to Pretoria and arranged to meet him for coffee or tea. We agreed to meet at his chambers at the Constitutional Court.

31 I first met Justice Jafta in 1990 when I was professor and head of the Department of Public Law at the then University of Transkei. Justice Jafta was then a lecturer of constitutional law in my department.

32 We talked for approximately 90 minutes about our respective families, my divorce, our past experiences at the University of Transkei, our experiences as judges (particularly my experiences at the Cape High Court), issues of transformation on the bench and at the Bar, Justice Jafta's experience as judge of the Supreme Court of Appeal, the property he bought in Bloemfontein, his experience as Acting Judge of the Constitutional Court, his intention to avail himself for permanent appointment in the event of a vacancy arising in the Constitutional Court, and general management of the Constitutional Court.

33 We also discussed the principle of attorney and client privilege which had been argued before the Constitutional Court on 11 to 13 March 2008 in the cases of Thint (Pty) Ltd v NDPP and Others and Zuma and Another v NDPP and Others ("the Thint/Zuma cases").

34 The conversation about the attorney and client privilege issue in relation to the Thint/Zuma cases was sparked by numerous files of the record which were clearly marked so that any person walking into Justice Jafta's chambers would be able to recognise concerned those cases. We discussed the importance of fair trial rights and privilege. I expressed the view that I felt generally strongly about the issue of fair trial rights and privilege. Justice Jafta indicated that he felt the same but that he was not sure that everyone, particularly his white colleagues, felt the same. It was in that context that I then said to Justice Jafta "sesithembele kinina". I never imagined that this statement would later be construed as an improper attempt at soliciting a favourable finding for Mr Zuma. That was never my meaning.

Volume 5, page 283, para 23.5 of the SCA record

35 Had the Chief Justice asked me before lodging a complaint this could have been clarified.

36 It was purely co-incidental that the files in Justice Jafta's chambers related to the Thint/Zuma cases. There is no indication that the discussion about privilege would not have arisen if the files related to any other cases about which I may have known from media reports concerned the issue of privilege. 

37 At no stage during that conversation did Justice Jafta suggest that I was acting inappropriately in expressing views on the issue of privilege.

38 At no stage did Justice Jafta demonstrate any discomfort in light of the views expressed to him by me during that conversation.

39 At no stage did I ever suggest that Justice Jafta should ignore the evidence and rule in any particular way. The conversation was pleasant and ended cordially when Justice Jafta walked me to Justice Ngcobo's chambers.

The Facts: A Meeting With Justice Nkabinde

40 I had coffee with Justice Ngcobo and left after about fifteen minutes. As I was leaving Justice Ngcobo's chambers I then, by sheer co-incidence, ran into Justice Nkabinde who was with Justice Madala. I had not seen her since her appointment to the Constitutional Court. She said although she had not seen me for a while she had read about me in the papers. We laughed about that and I then promised to pay her a visit the next time I had occasion to be at the Constitutional Court.

Volume 5, page 285, para 23.8

41 That occasion presented itself three weeks later when I attended a meeting scheduled by the Chief Justice's chief director at the Constitutional Court, Advocate Theo Sifuba. It was a meeting of the Local Organising Committee of the Commonwealth Magistrates and Judges Association. I was chairman of the Local Organising Committee at the Chief Justice's request.

42 I pause here to point out that throughout the court and JSC proceedings the Chief Justice has not once denied

42.1 that this meeting took place around April 2008,

42.2 that I attended the meeting at that time,

42.3 that I was chairman of the committee, and

42.4 that he had requested me to chair the committee.

43 I gave Justice Nkabinde a courtesy call to inform her that I would be at the Constitutional Court and would visit her for a few minutes before the start of the meeting.

44 We know each other and have mutual friends. I met her some six years before her appointment to the Constitutional Court when she was still a trial judge. We shared a mutual interest in Labour Law. I served in the Labour Appeal Court, and she in the Labour Court.

Volume 5, page 287, par 25

45 I arrived in Johannesburg a day before the date scheduled for the meeting of the Local Organising Committee because I had been invited to attend a function of Aspirant Female Judges at Velmo Hotel near Pretoria. I had been one of the examiners of aspirant female judges. Justice Nkabinde was at the function and she gave a vote of thanks. After her vote of thanks she introduced me to her husband and left, saying she would see me the following day. She also indicated that she would be available anytime before lunch since she had plans to travel to the North West that afternoon.

46 I pause here to point out that not once during the course of the court and JSC proceedings has Justice Nkabinde denied

46.1 that she attended a function of Aspirant Female Judges at Velmo Hotel near Pretoria,

46.2 that she gave a vote of thanks at that function,

46.3 that she met me there and introduced me to her husband,

46.4 that she told me she would see me the following day, and

46.5 that she would be available to see me before lunch the following day as she had plans to travel to the North-West that afternoon.

47 I did not come to Justice Nkabinde's chambers uninvited as has been alleged by the Chief Justice.

48 The following day I went to the Constitutional Court and got there at about noon. Justice Nkabinde offered me tea and fruit which were in a bowl on a table. We talked about family, her surname, divorce, my experience at the Cape High Court and her experience at the Constitutional Court. She asked me whether all my "problems in Cape Town" were over.

Volume 5, page 289, par 27

49 I indicated that "my problems" (referring to the racism and the Oasis issues) had become significantly less than in the past and we both laughed it off. Justice Nkabinde denies none of this.

50 When Justice Nkabinde asked what had brought me to the Constitutional Court I told her I was attending a meeting of the Local Organising Committee and that I had a mandate from the Chief Justice to be the Committee's chairperson. As with Justice Jafta, the record of the Zuma/Thint cases was in clear view.

51 Justice Nkabinde told me that she was busy doing a note on the issue of privileged communication between attorney and client. I expressed my own views on the issue of attorney and client privilege and Justice Nkabinde told me about the importance of that issue in the Thint/Zuma cases. She said because the Constitutional Court was the final court "it was important that they get things right first time all the time".

Volume 5, page 289, par 28

52 I noticed the record in the Zuma/Thint cases in Justice Nkabinde's chambers because it was in clear sight. I then remarked that the case was probably one of the most demanding cases that the Constitutional Court has dealt with in light of its importance to the President of the ANC and the ANC itself. This was said in the context of the fact that Mr Zuma was a likely candidate for the Presidency of the country.

53 I pause here to point out the obvious. Clearly, where a Court is seized with a matter the outcome of which could determine the outcome of a presidential race, that matter is self-evidently important both to the presidential candidate and to his political party that has chosen to field him as a candidate. The Judges of the Constitutional Court have somehow contrived to consider this articulation of the obvious as constituting an inappropriate attempt at influencing the decision of the Court improperly. This is clearly a mistaken view that could have been averted had they simply asked me what my intensions were.

54 Although Justice Nkabinde did not discuss the merits of legal privilege as relates specifically to the Zuma/Thint cases, she did say that it was an important legal issue in the case. I agreed with her and remarked that the Supreme Court of Appeal did not attach much weight to the issue of privilege when those cases served before it.

Volume 5, page 290, par 29

55 I pause here again to submit that this was my personal view based on my reading of the SCA's judgment in that case. The articulation of that view does not constitute judicial misconduct warranting the hurried issue of a media statement by the Judges of the Constitutional Court about unsubstantiated allegations of judicial misconduct against me. 

56 I knew no more about the case than what I read in public documents. I did not know, until Justice Nkabinde told me, that she was writing a note on privilege.

57 The conversation with Justice Nkabinde lasted for about 30 to 45 minutes and ended as it had started - cordially. At no stage did Justice Nkabinde indicate any discomfort about the issues discussed including the issue of privilege. At no stage did she convey to me that my conduct was improper.

58 I am unable to explain why Justice Jafta would warn Justice Nkabinde of my alleged attempt to influence him. Nothing that transpired between me and Justice Jafta could have prepared me to meet this accusation. But then, this alleged warning is at odds with

58.1 the warm manner in which Justice Nkabinde received me in her chambers,

58.2 the free manner of our exchange of views on the issue of privilege,

58.3 the cordial manner in which we parted at the end of our conversation, and

58.4 the period of a month that Justice Nkabinde waited before raising the issue of her conversation with me as a concern with Justice Mokgoro.

59 Justice Nkabinde does not deny

59.1 that she welcomed me warmly in her chambers,

59.2 that she had a free exchange of views with me on the issue of privilege, and

59.3 that our conversation ended cordially.

60 She does not explain why it took her almost a month to realise that her conversation with me had been improper.

61 It is the Chief Justice, on the basis of hearsay matter, who denies

61.1 that Justice Nkabinde told me that she was doing a note on privilege in the Zuma/Thint cases,

Statement to the JSC, Volume 1, page 71, par 10.1

61.2 that during my conversation with Justice Nkabinde I made reference to a mandate I had from the Chief Justice to chair the Local Organising Committee of the Commonwealth Magistrates and Judges Association, and

Statement to the JSC, Volume 1, page 72, par 10.2

61.3 that Justice Nkabinde had told me that she had dealt with the question of privilege in the case.

Statement to the JSC, Volume 1, page 72, par 10.

62 There is absolutely no basis for the Chief Justice to prefer the version of Justice Nkabinde over mine without even soliciting my version in these respects. Why did he feel constrained to do so?

63 In her evidence given in my absence before the JSC on 8 April 2009, Justice Nkabinde for the first time

63.1 denies that I mentioned anything about my mandate from the Chief Justice to chair the Local Organising Committee of the Commonwealth Magistrates and Judges Association,

63.2 denies that I said anything to her about the conference that I was attending at the Constitutional Court the day I paid her a visit,

63.3 denies that I spoke to her about anything else other than the issue of attorney and client privilege,

63.4 denies that she said anything to me about writing a note on privilege in the Thint/Zuma cases,

63.5 denies that she was pressured into becoming a co-complainant in the impeachment proceedings, and

63.6 says she told me I was not entitled to discuss the issue of privilege arising in the Thint/Zuma cases because I was not a member of the Constitutional Court and did not sit in those cases.

64 I maintain that my version of the facts is true and correct.

The Facts Leading Up To The Media Statement and "complaint" of 30 May 2008

65 Almost a month then passed and on 30 May 2008, while in Cape Town and performing my normal judicial functions, I received a call from the Chief Justice at approximately 11h58. The purpose of the call was to inform me that the Judges of the Constitutional Court had decided to lodge a complaint of judicial misconduct against me.

66 When I requested details of the judicial misconduct that was the subject of the alleged complaint, the Chief Justice enquired whether I had a private fax number to which he could fax a copy of the complaint. This he did at 11h59 on that day. The document that was faxed through is styled "Complaint to the Judicial Service Commission by the Judges of the Constitutional Court" and appears in the SCA record. It is identical in all material respects to the media statement of the same date.

"Complaint", Volume 1, page 56

Media Statement, Volume 1, page 58

67 No sooner had I received the fax from the Chief Justice than I started receiving telephone calls from journalists about a media statement that they said the Constitutional Court had issued regarding a complaint it had lodged against me.

68 I pause here to point out that during the brief telephone call, the Chief Justice did not mention anything to me about the issue of a media statement concerning a complaint against me.

69 I point out further that both the media statement and the document that was faxed to me at noon of 30 May 2008 are long on condemnation and very short on fact. Nothing is said about

69.1 what was said,

69.2 to whom,

69.3 in what circumstances, and

69.4 why that which was said constitutes "an improper attempt to influence [the Constitutional] Court's pending judgement". 

70 The manner in which the decision to issue the media statement on 30 May 2008 came to be made was conveyed only on 17 June 2008 by the Chief Justice in a statement to the JSC. That was 3 weeks after the submission of the so-called "complaint".

Statement to the JSC, Volume 4, pages 218-238 (the relevant excerpts in this regard are to be found at page 222 par 11 to page 232 par 40)

71 I obviously have no direct knowledge of the sequence of events leading up to the issuing by the Judges of the Constitutional Court of the media statement about allegations of judicial misconduct against me. What I know is what the Chief Justice says in his statement to the JSC dated 17 June 2008.

72 In that statement it is alleged that in May 2008, Justice Nkabinde approached Justice Mokgoro for advice regarding the conversation she had had with me almost a month previously. Justice Mokgoro advised her to report the matter to the Chief Justice.

73 While Justice Nkabinde was presumably still mulling over this advice, Justice Mokgoro reported what had been conveyed to her to Justice O'Regan who was then Acting Deputy Chief Justice.

74 Justice O'Regan and Justice Mokgoro then encouraged Justice Nkabinde to report the matter to the Chief Justice or Deputy Chief Justice.

75 Before Justice Nkabinde could accept their advice, Justice O'Regan decided to inform Deputy Chief Justice Moseneke (who was apparently on leave at the time) of what had been conveyed to her by Justice Mokgoro. Justice Nkabinde then approached the Chief Justice about the matter.

76 I pause here to point out that I have denied Justice Nkabinde's reported version as contained at Volume 4, page 221, par 9 to page 224, par 16.

See: Statement, Volume 5, pages 280 - 293, pars 23 - 32.6, inclusive

 Statement, Volume 5, pages 300 - 306, pars 42 - 48.2, inclusive

77 The version that is denied is this:

77.1 that I visited Justice Jafta's chambers uninvited,

Volume 4, page 221, par 9(a)

denied at Volume 5, page 300, par 42.1

77.2 that I raised the matter of the Zuma/Thint cases with Justice Jafta without invitation,

Volume 4, page 221, par 9(b)

denied at Volume 5, page 301, par 42.2

77.3 that I sought improperly to persuade Justice Jafta to decide the Zuma/Thint cases in a manner favourable to Mr Zuma,

Volume 4, page 222, par 9(c)

denied at Volume 5, page 301, par 42.3

77.4 that I initiated a conversation with Justice Nkabinde about the Zuma/Thint cases without invitation,

Volume 4, page 222, par 10(b)

denied at Volume 5, page 301, par 43.2

77.5 that I sought improperly to persuade Justice Nkabinde to decide the Zuma/Thint cases in a manner favourable to Mr Zuma,

Volume 4, page 222, par 10(c)

denied at Volume 5, page 302, par 43.3

77.6 that Justice Nkabinde had reason to seek advice from Justice Mokgoro about her conversation with me, and about Justice Jafta's alleged warning of an improper approach by me,

Volume 4, page 222, pars 11 and 12

77.7 that my conversations with Justices Nkabinde and Jafta were inappropriate at all,

Volume 5, page 302, par 44

77.8 that Justices Nkabinde and Mokgoro had reason to wonder how I had become aware that Justice Nkabinde had been writing a post-hearing note on privilege,

Volume 4, page 223, par 14

77.9 that Justice Nkabinde did not tell me that she was writing a post-hearing note on the issue of privilege. I could never have known that if she had not told me,

Volume 5, page 303, par 46

77.10 that I had told Justice Nkabinde of my "connections with national intelligence" and that "some people were going to lose their positions after the elections",

Volume 4, page 223, par 15

77.11 that I made any reference to "national intelligence" in my conversation with Justice Nkabinde. I dismiss the allegation of people losing their jobs as laughable. Indeed, judges enjoy security of tenure and cannot simply be discarded by the new political broom that comes sweeping in following elections. I know nothing of this list to which Justice Nkabinde refers in her evidence of 8 April 2009 before the JSC in my absence,

Volume 5, page 303, par 47.1

77.12 that there was any basis for Justice Mokgoro giving Justice Nkabinde advice about her conversations with me a month earlier.

Volume 4, page 224, par 16

denied at Volume 5, page 304, par 48.1

78 I have no knowledge of what Justice Mokgoro might have felt about what might have been conveyed to her by Justice Nkabinde.

79 Two meetings were then held with Justice Nkabinde in which the Chief Justice advised her to make a written statement. It is alleged that at those meetings, and subsequently during a telephone conversation with the Chief Justice, Justice Nkabinde expressed her unwillingness to lodge a complaint against me. She was also unwilling to furnish a written statement regarding the matter that she had reported to the Chief Justice.

Volume 4, page 224, par 20

80 The Deputy Chief Justice then telephoned both Justices Jafta and Nkabinde calling them to a meeting in the Chief Justice's office at 11h00 on Wednesday 28 May 2008. The meeting was to take two hours. Present were the Chief Justice, the Deputy Chief Justice, Justice Jafta and Justice Nkabinde. The two senior judges confirmed to them that they had called the meeting in the capacity as Chief Justice and Deputy Chief Justice.

81 I pause here to point out that this necessitated that they invite me as well, either telephonically in that same meeting, or on another day, to give my version of what I had said to each and what I had intended thereby. Instead they accepted the version of Justices Jafta and Nkabinde. Why? The Chief Justice says they had no reason not to believe the two judges.

Volume 4, page 246, par 5.3

Volume 1, page 69, par

82 But in the absence of my version, how could they possibly arrive at that conclusion?

83 Justice Nkabinde then gave an account of her version. By then it had developed a few additions and contextual permutations since it was last told to Justice Mokgoro. Now the following was added:

83.1 that I had told her I was "politically well-connected",

Volume 4, page 226, par 25

 This I have denied

 Volume 5, page 309, par 56.1

83.2 that the implication of this connectedness was that I was "well informed about what was happening at the Court",

Volume 4, page 226, par 25

This seems intended to create atmosphere in order to get around the difficulty of explaining how I could possibly have known that Justice Nkabinde was preparing a post-hearing note on privilege if she had not volunteered that information in the context of our free discussion. I have denied that Justice Nkabinde did not tell me about this

Volume 5, page 303, par 46.2

83.3 that I had told Justice Nkabinde it was important to hold in Mr Zuma's favour,

Volume 4, page 226, par 25

I have denied this as "far-fetched" and not a correct record of my conversation with Justice Nkabinde

Volume 5, page 309, par 56.2

83.4 that she had told me it was no "besigheid" of mine to discuss the case with her since I was not a member of the Court and was not sitting in the case,

Volume 4, page 226, par 25

I have denied that there was a single occasion during my conversation with Justice Nkabinde that it became necessary for her to tell me that I was not entitled to discuss the case with her

Volume 5, page 310, par 56.3

83.5 that I had told her Mr Zuma was being "persecuted" in much the similar fashion as I had been "persecuted",

Volume 4, page 226, par 25

My remarks in this respect were made in the context of a juxtaposition of Mr Zuma's difficulties with my own as a judge committed to the transformation of the judiciary and the legal profession in a hostile Cape Town environment. It does not constitute judicial misconduct, much less a reason to issue a media statement of judicial misconduct against me,

Volume 5, page 313, par 61

83.6 that she had told me not to interfere with the workings of the Court.

Volume 4, page 227, par 26

I have denied that I visited Justice Nkabinde with a view to attempting to influence her in any court decision.

Volume 5, page 310, par 57

84 Then Justice Jafta related his version to the Chief Justice and Deputy Chief Justice. He is reported by the Chief Justice to have said

84.1 he had gained the impression that I had "wished for a particular result in the matter". The statement does not say what that result is but achieves this result by innuendo with the allegation that I had mentioned that Mr Zuma had been "persecuted" in much the same way that I had been "persecuted",

Volume 4, page 228, par 30

I have explained the context in which the "persecution" remark was made and deny that I made any attempt to influence Justice Jafta from acting independently

Volume 5, page 313 par 61

84.2 he had "warned" Justice Nkabinde that I had "discussed the Zuma/Thint cases with him",

Volume 4, page 228, par 32

This "warning" is inconsistent with

· Justice Nkabinde's warm reception of me at her chambers when I came for a visit,

· her not raising the issue of the warning with me to find out if it was true, and

· the Nkabinde/Jafta joint statement of 12 June 2008 to the JSC in which they say they are not "complainant judges"; have on numerous occasions informed the Chief Justice and the Deputy Chief Justice of this; and were not willing to make statements about the matter

Volume 5, page 313-314, par 62.1

Volume 4, page 212

84.3 although he had considered my conduct to have been improper, he had not planned to lodge a formal complaint because he believed he had dealt with the matter decisively by rejecting my approach,

Volume 4, page 229, par 33

I have denied that there was any basis for a complaint, that there was any basis for rejecting my so-called "approach", and that Justice Jafta would have regarded my conversation with him as being inappropriate

Volume 5, page 314, par 63.1

85 The Chief Justice then says in his statement to the JSC that both Justices Jafta and Nkabinde "made it clear" [presumably to the Chief Justice and the Deputy Chief Justice at that meeting of 28 May 2008] that "the approach" by me had been "improper". He says they said they did not consider it necessary to lodge a complaint after dealing with the matter by rejecting my "approach".

Volume 4, page 229, par 34

I have denied that I "approached" the two Justices. I had a conversation with them. I deny that the conversation was improper. I consider the sartorial bent of how it came about that they refused to lodge a formal complaint against me if they considered my conduct as improper as being unlikely in light of their joint statement of 12 June 2008

Volume 5, page 315, par 64.1

86 I pause here to point out that while the Chief Justice and the Deputy Chief Justice could conceivably have succeeded at the meeting of 28 May 2008 to convince Justices Jafta and Nkabinde to change their minds and lodge a complaint against me for what they allegedly considered to be improper conduct, it is still a mystery why they would still issue a joint statement some two weeks later on 12 June 2008 (after the JSC had on 2 June 2008 called for substance to the complaint referred to in the media statement of 30 May 2008) categorically distancing themselves from any decision to lodge a complaint against me.

87 Equally unexplained by the Judges of the Constitutional Court (and Justices Jafta and Nkabinde in particular) is the two Justices' sudden about-turn in supporting a complaint on 17 June 2008 (by no more than a confirmatory statement and not substantive facts of their own) that they had strongly spurned only three court days previously. 12 June 2008 fell on a Thursday and 17 June on a Tuesday.

88 The Chief Justice and the Deputy Chief Justice then "raised the question of how the matter should be taken further". They considered that "the seriousness of the matter" warranted a meeting of all the judges of the Court "to discuss what steps should be taken". Justices Jafta and Nkabinde apparently had no objection to such a meeting being called. They, however, requested that their respective versions be told by the Chief Justice and the Deputy Chief Justice on their behalf. They also requested that the meeting be apprised of "their position on the matter".

Volume 4, page 229, par 35

89 I pause here to point out that

89.1 the two judges who were allegedly approached had expressed their unwillingness to lodge a complaint,

89.2 I had not been afforded an opportunity to convey my version of what I had said and what I had intended by it,

89.3 it is not clear what is meant by the two judges' "position on the matter" that they requested should be conveyed to the other judges. Presumably it was their unwillingness to lodge a formal complaint as they had each conveyed to the Chief Justice and the Deputy Chief Justice,

89.4 the Chief Justice is silent on whether the two judges' "position on the matter" was ever conveyed to the other judges. The rest of the Chief Justice's factual account in his statement to the JSC on 17 June 2008 shows that this was not done.

90 A meeting was then called on 29 May 2008 where the following judges were in attendance: Langa CJ, Moseneke DCJ, O'Regan J, Jafta AJ, Kroon AJ, Madala J, Mokgoro J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob J. Justices Sachs and Ngcobo were not in attendance.

91 At that meeting, the Chief Justice and Deputy Chief Justice asked the judges not to put any questions to Justices Jafta and Nkabinde given what they termed the "distressing circumstances" in which they found themselves. It was at that meeting that the Chief Justice and Deputy Chief Justice decided that my "conduct" as conveyed to them by Justices Jafta and Nkabinde "constituted a serious attempt to influence the decision of the Court in the Zuma/Thint cases".

Volume 4, page 230, par 36

92 The Judges of the Constitutional Court there present were apparently "shocked and distressed" by this report and a "full discussion" ensued. Various "courses of action" were apparently debated. It was then decided unanimously by all the judges present that the appropriate course of action was to lay a complaint with the JSC against me. In reaching this decision it was specifically stated that Justices Jafta and Nkabinde would have to give oral evidence in the event that I "resisted the complaint". It was also decided that "all judges should be party to the complaint." It was further decided that a brief press statement should be prepared. A draft statement was then circulated to colleagues for discussion.

Volume 4, page 230, par 37

93 I pause here to point out that while the Chief Justice's statement says "various courses of action" were debated

93.1 he does not say what those other courses of action were,

93.2 he does not disclose what was debated,

93.3 he does not say why the other "various courses action" were not considered appropriate in the circumstances,

93.4 he does not say whether one of those courses of action was to afford me an opportunity to state my version of what happened, whether that was rejected and why.

94 What is more, it is clear that no "full discussion" could possibly have taken place when the judges present were asked by the Chief Justice and the Deputy Chief Justice "not to subject [Justices Jafta and Nkabinde] to questioning". The reason advanced is that they were in "distressing circumstances". Why they should be in such circumstances is unexplained. What the undisputed facts show is that

94.1 they were unwilling to make statements about their conversation with me and had expressed this to the Chief Justice and the Deputy Chief Justice on numerous occasions,

Volume 4, page 212, par 3

Volume 4, page 224, par 20

94.2 they were unwilling to lodge a formal complaint.

Volume 4, page 229, pars 33 and 34

95 It is not clear why this should place them in "distressing circumstances" unless they were being urged, against their free will, to make statements. This seems a distinct possibility, with respect, if the decision of the meeting of 29 May 2008 is any indication that they "would have to give oral evidence to the JSC in due course" in the event of my resisting the complaint. This would explain why they would be distressed because they neither wanted to make a statement nor lodge a complaint. In fact Justice Nkabinde has confirmed this in her evidence given in my absence before the JSC on 8 April 2009. She describes the situation of one judge testifying against another as "undesirable". I submit that it was by this difficulty that the decision of Justices Jafta and Nkabinde to make their joint statement of 12 June 2008 not to associate themselves with a complaint against me was informed. In these circumstances, the last thing they would have welcomed is being witnesses in a complaint they want nothing to do with.

96 This is also explained by why neither of the two judges have submitted a full statement in which they give a first-hand account of what happened, electing rather to make confirmatory statements to the Chief Justice's statement - and he was not even there - and subsequently giving oral evidence at the fatally flawed proceedings of the JSC.

Volume 4, page 241 (Justice Nkabinde)

Volume 4, page 242 (Justice Jafta_

97 This happens not because the two protagonists were indisposed or out of the country. They simply did not want to make a statement as the record shows clearly. The only reasonable inference from this, their bare denial notwithstanding, is that undue pressure was brought to bare on them to support initiation of impeachment proceedings against me.

98 I respectfully submit no "full discussion" could have happened at that meeting of 29 May 2008 because the Chief Justice and the Deputy Chief Justice requested the other judges not to subject Justices Jafta and Nkabinde to questioning.

Volume 4, page 230, par 36

99 This presents a problem because there is no way of knowing what answer or information a question that was never allowed to be put would or could have elicited. Now we shall never know

99.1 whether a question could have been asked that could have elicited a version of the facts that is more favourable to me;

99.2 whether a question could have elicited an explanation from Justices Jafta and Nkabinde for their unwillingness to lodge a complaint that could have resonated with the other judges not to support the issue of a media statement and lodging of a complaint; and

99.3 whether their explanation could not have triggered a further enquiry to hear my version of events.

100 Because the matter was stifled and not fully ventilated, the Judges of the Constitutional Court have deprived this Court of the full facts of what could have justified their issue of a media statement and lodging a complaint of judicial misconduct against me. Absent the facts from which a possible justification for the drastic step of instituting impeachment proceedings against a senior judge can be founded, the only reasonable conclusion on a balance of probabilities must surely be that the persons behind these proceedings have less than lawful intentions.

101 A further meeting of the Judges of the Constitutional Court was held on 30 May 2008 as Justice Ngcobo who was not at the meeting of 29 May 2008 had requested a discussion on whether a media statement should be issued.

102 At that meeting of 30 May 2008, not all judges were present, but the Chief Justice, the Deputy Chief Justice, O'Regan J, Jafta AJ, Nkabinde J, Madala J, Mokogoro J, Kroon AJ, Ngcobo J, Skweyiya J and Van der Westhuizen J were present. Justices Sachs and Yacoob were not present.

103 After a discussion, the judges decided that the media statement would be issued in the same terms as the so-called "complaint". All judges of the Constitutional Court apparently concurred in the decision. The media statement, containing untested allegations of judicial misconduct against me, was disseminated not only to the media but also to

103.1 members of the Bar,

103.2 the Department of Justice and Constitutional Development,

103.3 the Cape Law Society,

103.4 the Law Society of South Africa,

103.5 the South African Human Rights Commission,

103.6 the South African Law Commission,

103.7 the National Association of Democratic Lawyers (NADEL),

103.8 the Black Lawyers Association (BLA),

103.9 tertiary institutions, and

103.10 publishing houses (Juta and LexisNexis).

See: Volume 4, page 196, footnote 1

104 A wider circle of dissemination one cannot imagine.

105 I pause here to point out that international instruments on judicial discipline, reported judgments in established constitutional democracies on the subject, and the Ethics Code for South African judges all emphasise the importance of dealing with allegations of judicial misconduct in a sensitive manner, especially when such allegations have not yet been investigated. The reason for this is not hard to find. Investigation may well reveal that there is no substance in the allegations, and premature publication thereof would result in the dignity of the judge concerned being irreparably tarnished even if the allegations are later found to be baseless.

106 It was further agreed at the meeting of 30 May 2008 that I would be telephoned by the Chief Justice, who did telephone and informed me of the "complaint" around noon of 30 May 2008, evidently after the media statement had already been issued because I received calls from the media about the statement soon after the Chief Justice's telephone call which lasted no longer than 2 minutes.

Complaint by the Respondent, Volume 4, page 196, par 1

107 The Chief Justice, in his response to my complaint against him and the other Judges of the Constitutional Court, does not deny any of this.

See: Volume 4, pages 244 - 249

108 Still, I had not been afforded an opportunity to state my version of the facts to the Chief Justice which might have given sufficient explanation to avert the issue of a media statement on untested allegations of judicial misconduct and lodging of a complaint in those terms.

109 That is how the media statement came to be released and the complaint of 30 May 2008 lodged.

The Facts Leading Up To The Submission of the Statement on 17 June 2008

110 Having issued a media statement containing unsubstantiated allegations of judicial misconduct on 30 May 2008, and telling the public that they had lodged a complaint against me in that respect, the Judges of the Constitutional Court had by 2 June 2008 still not submitted the factual averments on which their "complaint" against me was founded. That was to be done only on 17 June 2008, 3 weeks after issuing a media statement about the "complaint".

111 In my complaint to the JSC against the Judges of the Constitutional Court, I launched a frontal attack on the lack of detail in the so-called complaint lodged on 30 May 2008. I articulated my concerns in these terms:

111.1 "On receipt of the media statement, I contacted, through my attorney of record the Judicial Services Commission, in order to obtain the details of the complaint. My attorney was forwarded with a response in which the media statement was attached as the complaint by the Judges lodged against me. I was required to respond to the alleged complaint referred to in the media statement before the Judicial Services Commission met on 6 June 2008. I was unable to respond to the alleged complaint and in subsequent communication with the Judicial Services Commission I indicated my inability to respond to a media statement of the Constitutional Court judges. [In a] . . . letter written on my behalf by my attorney . . . I made the requests for the particulars of the alleged complaint. My position that there was no formal complaint was vindicated in a media statement issued by the Judicial Services Commission . . . ."

Volume 4, page 201, par 6

111.2 "The judges of the Constitutional Court have undermined the Constitution by making a public statement in which they seek to activate a procedure for my removal for alleged improper conduct before properly filing a complaint with the Judicial Services Commission in terms of section 177 of the Constitution"

Volume 4, page 210, par 17.1

111.3 "The judges of the Constitutional Court failed to adopt a procedure that is fair in that as I file this complaint I do not have a complaint from the judges of the Constitutional Court"

Volume 4, page 211, par 17.5

112 My complaint was submitted on 10 June 2008. Both the JSC and I were to be furnished with a proper complaint by the Judges of the Constitutional Court only on 17 June 2008.

113 On 2 June 2008 the JSC required details of the complaint from the Judges of the Constitutional Court by not later than 6 June 2008. Justice O'Regan brought the request to the attention of Justices Jafta and Nkabinde who agreed that they would endeavour to meet the deadline but indicated that they would like two Senior Counsel (whom they identified) to be engaged to act for them.

Statement by Langa CJ to the JSC, Volume 4, page 232, par 41

114 On the appointed deadline of 6 June 2008, Justice Howie, then chairperson of the JSC, again requested details of the complaint from the Judges of the Constitutional Court without reference to the earlier request of 2 June 2008. He wrote:

"With regard to the factual details of the complaint, I have been requested by the Commission to ask that the details be provided in the form of a statement by each of the two Judges concerned . . . ."

 See: Letter from the JSC to the Constitutional Court Judges,

Volume 4, page 194

115 It is then alleged by the Chief Justice that, as one of the Counsel engaged on behalf of the two judges concerned was "not in Johannesburg", the two judges could not prepare their statement by 6 June 2008. It is alleged further that Justice O'Regan communicated this to the JSC, and that the statements would be submitted by 13 June 2008.

See: Statement by Langa CJ to the JSC,

Volume 4, page 232, pars 42 - 43

116 At a weekly conference held by the Judges of the Constitutional Court on 9 June 2008, it was agreed that Senior Counsel and a Junior would be engaged for the Court, and that the two sets of Counsel (one set for the Court and another for Justices Jafta and Nkabinde) should work together. Counsel for the Court then prepared a statement which they forwarded to Counsel for Justices Jafta and Nkabinde on 11 June 2008 "for its contents to be confirmed". In the meanwhile, the Deputy Chief Justice "held a series of conversations" with Justices Jafta and Nkabinde with a view to finalising portions of the statement insofar as it related to them.

See: Statement by Langa CJ to the JSC,

Volume 4, pages 232 - 233, par 44-47

117 During that period, Counsel for Justices Jafta and Nkabinde allegedly proposed that certain information be included in the statement. This information related to the allegation that I, "in the course of that conversation", said the case against Mr Zuma should be looked at properly and "sesithembele kinina". It also related to the allegation that I had "in the course of that conversation" wanted to talk about privilege which I was alleged to have said formed the "gravamen" of the case against Mr Zuma.

See: Statement by Langa CJ to the JSC,

Volume 4, pages 233-234, pars 48-49

118 On 12 June 2008 the Judges of the Constitutional Court discovered that Justices Jafta and Nkabinde had that day submitted a joint statement of their own in which they indicated that they did not wish to lodge a complaint against me or make statements about the matter.

See: Statement by Langa CJ to the JSC, Volume 4, page 234, par 50

119 On that same day, Justice Howie, then chairperson of the JSC, informed the Judges of the Constitutional Court about the joint statement by Justices Jafta and Nkabinde and enquired whether in those circumstances the complaint was to be pursued and what the evidence was. He then said I, the Commission and the public would have to be informed if the complaint was not to be pursued.

See: Letter from the JSC, Volume 4, page 214

120 A meeting of the Judges of the Constitutional Court was then convened the following morning (on Friday 13 June 2008 at 09h30) "to discuss and settle the statement to be issued to the JSC". All but Justices Jafta, Nkabinde, Madala, Sachs and Skweyiya were in attendance. It was then agreed that a "full meeting" should be held at which Justices Jafta and Nkabinde should be asked to attend. That meeting sat on Monday 16 June 2008 at noon. The statement of 17 June 2008, and confirmatory statements, was then finalised and submitted to the JSC.

See: Statement by Langa CJ to the JSC,

Volume 4, pages 234-235, pars 51-52

121 I pause here to draw the Court's attention to the following aspects of the Judges' own averments which demonstrate not only that I was justified in seeking protection and relief from the Court, and the Johannesburg High Court in granting it, but also that there was never any basis for complaint and the issue of a media statement. 

121.1 First, it is clear that the only people who had direct knowledge of what was said during the conversations in question are Justices Jafta and Nkabinde on the one hand, and I on the other. None of the other Judges had any direct knowledge of that. In those circumstances, it was imperative for the Judges to afford me the opportunity to tell them my version before concluding that I had improperly attempted to influence their decision in the Thint/Zuma cases. It is with respect untenable that the Judges of the Constitutional Court should take the view, when the tenure, livelihood, professional life and reputation of a senior judge are at stake, that they had no duty to hear him. This was with respect a cynical view.

121.2 Second, quite evidently, the two judges who have direct knowledge of what was said had no intention of either making a statement about the matter or lodging a complaint of judicial misconduct. They expressed this to the Chief Justice and the Deputy Chief Justice on numerous occasions, culminating in their joint statement of 12 June 2008. The reason for this is quite clearly that there was no impropriety committed. The belated explanation advanced in a statement dated 17 June 2008 (although claiming that it had been given on 28 May) that they considered it unnecessary to lodge a complaint because they had successfully rejected my alleged improper advances is an after-thought that is simply not plausible, especially when viewed in light of the following factors:

121.2.1 It comes only 3 court days after they submitted a joint statement distancing themselves from the complaint which they must have known was being hatched;

121.2.2 It comes at a period when the Deputy Chief Justice was holding "a series of conversations" with them after learning of their joint statement distancing themselves from the lodging of a complaint;

121.2.3 It comes at a time when they were in "distressing circumstances" which could only have been occasioned by a requirement that they "would have to give oral evidence" at the JSC. This "distress" could only have arisen if what they were required to do ran counter to their conscience;

121.2.4 It does not explain why they sought representation by a different set of Counsel than that representing the Court or other Judges of the Constitutional Court;

121.2.5 It does not explain why they never once submitted a statement supporting the complaint in which they set out in their own words what precisely happened, and this after the JSC had specifically required that the statement supporting the complaint be made by them personally;

121.2.6 It does not explain why neither of them attended the meeting on Friday 13 June 2008 which they must have known had been convened "to discuss and settle the statement to be issued to the JSC" according to the Chief Justice;

121.2.7 It does not explain why the Chief Justice, having said that at the meeting of Friday 13 June 2008 it had been decided that the two judges "should be asked to attend" the meeting scheduled for Monday 16 June 2008, there is no indication of whether they attended or not;

121.2.8 It does not explain why there is absolutely no detail as regards what was discussed at that meeting of 16 June 2008, coming as it does so soon after the two judges concerned had distanced themselves in the most public manner they could from the idea of a complaint - a joint statement to the JSC;

121.2.9 It does not explain why the two judges' Counsel would propose alterations to a joint statement of all the appellants, only for the two judges to submit their own statement the very next day, which contradicts what seems to have been a popular intention to push on with the submission of a statement giving factual detail to the so-called complaint that had been lodged earlier on 30 May 2008.

122 These are some of the obvious factors that the JSC should have considered at the preliminary stage before embarking upon a formal enquiry that could culminate in my impeachment. It considered none of them.

The Basis for the Relief Sought: Interdict

123 It is respectfully submitted that the JSC proceedings are unlawful and therefore void ab initio for the following reasons:

123.1 The JSC has at all material times been unlawfully and improperly constituted for purposes of conducting the formal inquiry commencing on 1 April 2009. Section 178(5) of the Constitution expressly provides for the JSC to be constituted by 13 members, including the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member, whenever any matter other than the appointment of a judge is considered by it.

123.2 For the entire duration of the formal enquiry that commenced on 1 April 2009 and ended for all intents and purposes on 8 April 2009, the JSC comprised neither the prescribed 13 members nor included the relevant Cabinet member or his delegate. It is clear from the mandatory provisions of section 178(5) that the JSC is not at large to press on as it did with less than 13 members and without the Minister of Justice and Constitutional Development being present.

123.3 It appears that the JSC comprised only 11 members. Since it makes decisions on a simple majority basis, the framers of our Constitution must have considered the importance of all 13 members, including the Minister of Justice or his designated alternate, participating in deliberations on matters of the kind with which the JSC is now seized. The participation of the Minister of Justice is particularly important in matters of this kind because it is he who appoints judges although it is the National Assembly that removes them from office.

123.4 The JSC conducted the proceedings in violation of its own Rules Governing Complaints and Enquiries in terms of section 177(1) of the Constitution in that:

123.4.1 It failed properly to establish in accordance with rule 3 of its Rules whether there is a prima facie case to justify a formal enquiry both as regards the allegations of judicial misconduct against me and as regards my complaint against the Judges of the Constitutional Court. Legal argument in this regard will be advanced at the hearing of this matter in due course.

123.4.2 It failed properly to conduct a preliminary investigation in terms of rule 4 of its Rules.

123.4.3 It proceeded to conduct a formal enquiry without any regard to the jurisdictional requirements in rule 5 of its Rules in that

• I was not served with any pro-forma charge sheet particularising the alleged gross misconduct against which I was required to defend myself;
• I was given no proper notice of a formal enquiry because, contrary to rule 5.2 of the JSC Rules, I was denied "sufficient time to prepare" my defence and for my complaint. The JSC knew full well that my legal representatives and I were at that time preparing to oppose the appeal of the Judges of the Constitutional Court in the Supreme Court of Appeal. While the JSC advised me on 17 February 2009 that it had set aside the period 1 - 8 April 2009 for the formal enquiry -
  • on 9 December 2008 my attorneys had received a notice of appeal from the Judges of the Constitutional Court;
  • on 3 February 2009, having obtained leave to appeal, the Judges of the Constitutional Court had requested directions from the SCA which were subsequently given requiring that they file a record by 23 February 2009, that they filed their heads of argument by 6 March 2009, that my Counsel file heads of argument on my behalf by 20 March 2009, and that the appeal would be heard on 23 March 2003;
  • judgment of the SCA was reserved and then handed down on 31 March 2009, the day before the formal enquiry was scheduled to begin at the JSC;
  • since the matter turned on a constitutional issue, I had a right to appeal further to the Constitutional Court, which I have done.
• In these circumstances, in thus failing to afford me "sufficient time to prepare" my defence, the JSC failed to give me proper notice of the formal enquiry.

123.4.4 Neither I nor the Judges of the Constitutional Court were asked to plead to any charges contrary to the requirement in rule 5.3 of the JSC Rules;

123.4.5 The decision of the JSC to waive the appointment of an attorney and/or Counsel to act as pro-forma prosecutor in terms of rule 5.4 was irrational and unreasonable in that it transformed the JSC into both the Prosecutor and the Judge. The manner in which the JSC conducted both these functions denuded it of any independence and impartiality required for the exercise of its adjudicative functions;

123.4.6 The JSC failed to give effect to rule 5.7 of its Rules in that it proceeded to hear oral evidence in my absence, thus denying me the right to present or call evidence, to cross-examine witnesses and to present argument.

123.5 In unilaterally truncating the issues to be covered at the formal enquiry the JSC quite impermissibly limited my defence and egregiously emasculated my complaint. Its letter dated 17 February 2009 and in which it imposed the dates for the formal enquiry and the issues that it would seek to resolve is annexed hereto as "MJH6". Objectively construed, the letter formulates the issues to be dealt with clearly to suit the Judges of the Constitutional and prejudice me. In it the JSC even purports to decree which witnesses will be called.

123.6 There are issues not considered by the JSC in that letter which in my respectful submission were relevant to the determination of matters before it. These include the following:

123.6.1 Whether it is impermissible for a judge in chambers to discuss a case on which he is not sitting with another judge who is so sitting. By the manner of the formulation of its questions in that letter, the JSC seems impermissibly to have assumed that this is indeed so.

123.6.2 Whether it is impermissible for a judge of one Court to discuss a case with a judge of another Court in circumstances whether the latter is sitting in the case and the former is not.

123.6.3 Whether, specifically, it is impermissible for a judge of the High Court to discuss constitutional cases with Constitutional Court judges in relation to which judgment by the Constitutional Court is pending. Again, the JSC seems to have assumed that this is indeed so. This is borne out by its ready acceptance of Justice Nkabinde's evidence on 8 April 2009 that she told me that I am not entitled to discuss the Thint/Zuma cases with her because I was not a member of the Constitutional Court. The transcripts of the JSC proceedings for 1, 4, 7 and 8 April 209 are contained in a separate bundle filed herewith.

123.6.4 Assuming for the sake of argument that I expressed myself to Justices Jafta and Nkabinde as alleged by the Judges of the Constitutional Court, whether my conversations with the two justices went beyond the exercise by me of my right to freedom of thought, belief and opinion on the one hand, and my right to freedom of expression on the other. Both rights are enshrined in the Bill of Rights Chapter of the Constitution.

123.6.5 I would have wished to learn from the Judges of the Constitutional Court whether a judge disavows his right to freedom of thought, belief, opinion and expression when he is appointed a judge.

123.6.6 I would have wished to learn from them on what basis they allege, if at all, that my exercise of these Constitutional rights fell reasonably and justifiably to be limited within the meaning of the limitations analysis in section 36(1) of the Constitution.

123.6.7 Had I not been medically indisposed, I would have wished to call the evidence of other senior judges on the issue of whether or not a judge may not permissibly discuss a case with another judge in which he is not sitting. The JSC denied me that right by refusing a reasonable request for a postponement and by truncating the issues to be dealt with.

123.6.8 Since 13 Judges initiated impeachment proceedings against me, I would have wished to ascertain from each of them what motivated each to do so. For example, Justice Sachs was in none of the meetings at which the judges of the Constitutional Court decided to submit a complaint and issue a media statement in May 2008. So what motivated him to go along with the impeachment? Justice Ngcobo was not present at the meeting of 29 May 2008 when the Judges decided to lodge a complaint. But he supported the Chief Justice's subsequent statement of 17 June 2008 giving the factual basis to the complaint for the first time. How did he come to the conclusion that mine was impeachable conduct? Justice Ngcobo also initially had reservations about issuing a media statement. What was the basis for his reservations and what made him change his mind subsequently by 17 June 2008? The JSC denied me that right by truncating the issues to be covered and refusing me a reasonable request for a postponement.

123.6.9 I would have wanted to learn from each Judge individually what precisely happened at that meeting of 29 May 2008 when the Chief Justice and the Deputy Chief Justice requested the other Judges not to put questions to Justices Jafta and Nkabinde about their "distressing circumstances". The JSC shut the door to the possibility of any of that being raised at the formal enquiry.

123.6.10 My complaint was much wider than the JSC's formulation of it. It did not stop at the allegation of the non-descript concept of gross misconduct. It specifically charged the Judges of the Constitutional Court with having violated by right to human dignity and equality. I would have wished to explore that line of questioning but the JSC shut the door, limiting the enquiry to an non-descript concept of gross misconduct.

123.7 Nowhere in the Constitution, the Judicial Service Commission Act, 9 of 1994, as it was when the impeachment proceedings were initiated against me, and the JSC Rules is there any guidance as regards what constitutes "gross misconduct" to warrant a recommendation by the JSC of a judge's impeachment. In the result, the JSC is with respect fumbling in the dark and whatever decision it should make at the conclusion of its proceedings will be founded on an offence in relation to which there are no clearly defined parameters. It would be egregiously unfair to leave the determination of what constitutes an impeachable infraction to the adjudicator of fact. The usual approach is that both the complainant and the respondent on the one hand, and the adjudicator on the other, know what the definition of the offence is. The adjudicator is then tasked with ascertaining whether or not the offence has been committed. If the adjudicator has no objectively defined parameters of what constitutes the offence, then how is it to know whether or not the offence has been committed? Thus, on what basis will the JSC make a finding that my conduct constitutes or does not constitute gross misconduct, when gross misconduct is nowhere objectively defined? I respectfully submit that this is yet another reason why the proceedings of the JSC are untenable and must be brought to a halt.

124 For these reasons, it is my respectful submission that the JSC proceedings fall to be brought to a halt

125 I submit that the requirements for an interim interdict have been met.

125.1 Prima facie right: For the reasons advanced above, I respectfully submit that I have a prima facie right to have the JSC impeachment proceedings declared unlawful and for that reason halted. I am entitled to have my name cleared through a proper and lawful process. I am entitled to have my complaints adjudicated in a non-partisan manner that is devoid of any political considerations. The JSC as currently constituted clearly cannot do that.

125.2 The JSC will become another unlawful platform for the continued attempts to force me off the bench in an unconstitutional manner. In that regard, it is a threat to the Constitution itself and the independence of the judiciary. Given that the fairness of the procedure is not only important to me as a judge but to the protection of judicial independence, I submit that I should be allowed to pursue my rights to challenge the fairness of the JSC procedure and in that regard the JSC proceedings ought to be halted pending the outcome of review proceedings. The lawfulness and integrity of the process has completely been undermined by the JSC that there is no reasonable prospect that the outcome of those proceedings will be fair.

125.3 Irreparable Harm: The ultimate decision that the JSC can reach at the conclusion of its deliberations is a recommendation that I be impeached. Thus, I shall suffer irreparable harm if the JSC as presently constituted is allowed to continue with its formal enquiry and deliberations for the reasons advanced above and since the JSC would, in proceeding to consider this case on its merits, be doing so based on a selective, incomplete and biased approach. My tenure of office as a judge of the High Court is at stake and I believe honestly that it is being unconstitutionally interfered with. Tenure is one of the facets of judicial independence.

125.4 Balance of Convenience: I respectfully submit that the balance of convenience favours the granting of an interim interdict on the grounds advanced above. There would be no harm or prejudice to either the JSC or the Judges of the Constitutional Court if an interim interdict were granted and the JSC impeachment proceedings temporarily halted until such time as my pending appeal to the Constitutional Court and the review application are finally determined and my application for declaratory relief finally determined by the Courts. After all, the JSC has seen no need to expedite this matter while the Judges of the Constitutional Court were proceeding with their appeal in the Supreme Court of Appeal.

125.5 A refusal of the interim interdict on the other hand would, in my respectful submission, cast a heavy and undesirable shadow over the integrity of the JSC proceedings and indeed the motives of the JSC itself. Since the right to freedom of expression, thought, opinion and belief is in my submission not limited only to that with which the recipient agrees, a refusal of the interim interdict in the circumstances of this case will leave a lasting impression that the JSC tolerates free speech, opinion, thought and belief among judges only for as long as the idea, thought, belief and opinion being expressed meets with its approval. Such a result would in my respectful submission clearly be damaging to the independence of the judiciary. Because this aspect has been excluded by the JSC in its formulation of the issues it wanted to investigate, it is not possible to remedy this serious irregularity by simply ordering the JSC to consider the issue in its deliberations and make findings on it. I would have wished to bring witnesses and cross-examine the Judges of the Constitutional Court on this issue.

125.6 No Other Satisfactory Relief: I submit that there is no other satisfactory relief in the circumstances of this case. The dispute between the Judges of the Constitutional Court and me must be resolved but that cannot be at the expense of my right to fair procedural safeguards.

125.7 I respectfully submit that I have been forced to take this route in order to assert my rights to have my matter determined in a manner that is fair and to protect the integrity of the judicial office. I have resisted for a long time any temptation to escalate any conflicts which threaten judicial independence and while I have suffered at the merciless hands of my critics, I remain convinced that this country's judiciary is established on very firm foundations and will not be undermined by the careless and vengeful attempts to remove me from office in an unconstitutional manner. I am acutely aware of the importance to this country of a judiciary that has integrity and credibility, and I will not accept, for the good of this judiciary, to be forced off the bench through unlawful means.

The Basis for the Relief Sought: Review

126 In addition to the application for an interim interdict, I ask this Court to grant a rule nisi calling upon the JSC to show good cause why its current impeachment proceedings should not be reviewed and set aside.

127 I also ask that the rule operate as an interim order pending final determination of the review application.

128 The grounds for the review application are set out in PART B of the Notice of Motion. They are:

128.1 The enquiry by the JSC into allegations of judicial misconduct against me on the one hand, and my complaint against the Judges of the Constitutional Court on the other, is unlawful and therefore void ab initio for the following reasons:

128.1.1 The JSC has at all material times been and continues to be unlawfully and improperly constituted for purposes of conducting a formal inquiry and making a finding pursuant to section 177(1)(a) of the Constitution of the Republic of South Africa, 1996, Act 108 of 1996 ("the Constitution");

128.1.2 The JSC has conducted and continues to conduct its proceedings in violation of its own Rules Governing Complaints and Enquiries in terms of section 177(1)(a) of the Constitution in that:

· it failed properly and formally, as it is required by rule 3 of its Rules, to establish whether there is a prima facie case both as regards the allegation of gross misconduct against me on the one hand, and as regards my complaint against the Judges of the Constitutional Court on the other, to justify a formal enquiry;

• it failed, without good cause, properly to conduct a preliminary investigation in terms of rule 4 of its Rules;
• it proceeded to conduct a formal enquiry without the requisite jurisdictional requirements in rule 5 of its own Rules;
• it failed to consider relevant factors and placed undue weight on irrelevant factors in refusing to grant a postponement of its proceedings which was sought on the basis of my undisputed medical condition;
• in proceeding with the formal enquiry in my unavoidable absence owing to acute sino-bronchitis, the JSC acted contrary to the provisions of rule 5.13 of its own Rules. Rule 5.13 of the JSC Rules expressly provides that the JSC may proceed in the absence of the judge against whom a complaint has been laid only where there is no good reason for such absence. The JSC did not question the veracity of my medical condition. It did not question the authenticity or veracity of the medical certificate submitted in that regard. It did not question the authenticity or veracity of the affidavit from the medical doctor that was put up in that respect. Yet it came to a conclusion that I had no good reason to be absent from the proceedings on 7 April 2009. This is a wholly unreasonable decision which no reasonable person in the circumstances could have made. I annex as "MJH7" hereto a copy of the affidavit together with the medical certificate by Doctor MP Waynik;
• It is clear ex facie the affidavit and medical certificate that
  • I consulted with Doctor Waynik and was medically examined by him on 3 April 2009,
  • I was diagnosed with acute sino-bronchitis,
  • I was booked off for 3 to 4 days from 3 April 2009,
  • During that period I was not to travel or venture out of my home surrounds "until the symptoms have completely abated",
  • Doctor Wynik's view was that I would be able to consult with my legal representatives from 7 April 2009.
• Significantly, I should point out that
  • Doctor Waynik examined me at my house at about 06h00 on the morning of 3 April 2009;
  • The fourth day of my medical confinement ended at about 06h00 on 7 April 2009;
  • The JSC proceedings were scheduled to resume at 09h00 on that very day, 7 April 2009;
  • Without satisfying itself that my "symptoms have completely abated" the JSC refused to accede to my request, on medical grounds, for a postponement of its proceedings;
  • Yet the JSC reached a decision that I had no good reason for failing to appear before it on the morning of 7 April 2009. 
• I annex hereto as "MJH8" the written reasons given by the JSC for its refusal to grant the postponement. I respectfully submit that they are wholly unreasonable and that it is a decision that no reasonable person or tribunal could have made in the circumstances.

128.2 On 29 April 2009, it emerged that the decision of the JSC to refuse my request for a postponement was motivated by political considerations in that, by a majority of 9 to 2, the JSC wanted to make sure that it commenced with oral evidence so that it could be seized with the matter before the new administration, after the national elections of 22 April 2009, got up to what the JSC majority termed its "shenanigans". From a dissenting ruling of one member of the JSC, it appears that by "shenanigans" the JSC majority feared that the new President of the Republic of South Africa, Mr Jacob Zuma, would replace members of the JSC. They thus wanted to ensure that such replacements would not affect their deliberations as presently constituted. This is, with respect, astonishing, leaves me with a sense of shock, and an unavoidable and reasonable apprehension of bias by the JSC against me. Why else would they be so hell-bent on hurriedly deciding the matter notwithstanding my medical condition?

128.3 It is my respectful submission that this political consideration was wholly irrelevant. A relevant consideration, namely, whether or not my symptoms had completely abated, was clearly never considered by the JSC. It is respectfully submitted that this vitiated the formal enquiry proceedings at which various Judges of the Constitutional Court gave oral evidence in my absence and therefore they must be set aside.

128.4 Those formal enquiry proceedings were also vitiated by the failure of the Acting Chairperson to recuse himself from the proceedings when Justice Jafta, a member of his Court in the Supreme Court of Appeal of which he is Head, was giving his evidence. It is my respectful submission that President Mpati's failure to recuse himself constitutes a gross irregularity. 

128.5 When I complained to the JSC about the procedure it was following in a letter dated 27 March 2009 it simply dismissed my complaints off-hand without any consideration in its letter of reply dated 30 March 2009. I annex my letter of complaint hereto as "MJH9" and the JSC's terse response as "MJH10". When my legal representatives requested a formal ruling of the JSC on my complaints as expressed in "MJH9", the Acting Chairperson on behalf of the JSC said the letter of 30 March 2009 constituted such formal ruling. It is my respectful submission that the decision or formal ruling of the JSC in these respects as contained in the letter of 30 March 2009 is irrational and unreasonable in relation to the complaints contained in the letter of 27 March 2009. This is yet another ground on which the JSC proceedings ought to be set aside.

128.6 A fortiori, the JSC made its decision to reject my complaints without even affording me and my legal team the opportunity to develop the points that I make in that letter. My legal representatives repeatedly advised the JSC at the hearing of 1 April 2009 that those are "points" which we would like an opportunity to develop into arguments in order to enable the JSC to respond more meaningfully and make an informed ruling. At the end of the proceedings on that day, the JSC simply adjourned for about 30 minutes and provided handwritten "reasons" for rejecting these points in addition to the "reasons" it had given in its letter of 30 March 2009, thereby refusing my legal team and I the opportunity to explain in grater detail why I hold the view that the JSC is biased. This opportunity was expressly requested. In the result, the JSC decided consciously to make a decision based on information that my legal counsel had clearly indicated was incomplete. It gave absolutely no reason for not providing the opportunity to develop the points raised in our letter of complaint dated 27 March 2009.

128.7 In any event, the response it gave on 1 April 2009 hardly constitutes "reasons". My legal counsel, on my instructions, requested the following from the JSC:

128.7.1 Reasons for its believing that it is not biased against me;

128.7.2 Reasons why it considers its procedure is not irregular

128.7.3 Record of proceedings of the JSC's meeting of 28 March 2009 at which a decision was taken to refuse my first request for a postponemt;

128.7.4 Copy of a minute recording the decision of the JSC in that meeting; and

128.7.5 Reasons why the Minister of Justice recused himself from participating in the proceedings.

128.8 The JSC simply denied without more that it was biased against me. It denied without more that the procedure it had adopted was irregular. It never provided the minute and record of proceedings of its meeting of 28 March 2009 at which it decided to refuse my first request for a postponement. It said the Minister's decision to recuse himself was a personal decision.

128.9 As expressly stated by my counsel at the hearing of 1 April 2009, this information and reasons were sought with a view to considering whether or not to bring interdict and review proceedings against the JSC. This is clear from the transcript of the JSC proceedings of that date, 1 April 2009, which is contained in a separate bundle filed herewith. In this application I request that those documents, record and information be made available to me and my legal team for purposes of considering the review application and submitting supplementary affidavits, if necessary.

129 The JSC is simply misdirected in saying that the decision of the Minister of Justice and Constitutional Development was a personal decision. The Minister is a constituent member of the JSC in terms of the Constitution without whom no decision can validly and lawfully be taken by the JSC on matters concerning the giving of advice to the national government in relation to issues concerning the judiciary and the administration of justice. Thus, any decision that the JSC may make on the subject-matter of its current deliberations will be null and void without the participation of the Minister of Justice or his designated alternate. Neither can at this deliberative stage participate because neither participated during the proceedings. This is yet another ground for setting aside the JSC proceedings.

Conclusion

130 In the result, I ask:

130.1 for a declaratory interdict that the proceedings of the JSC are unlawful and therefore null and void;

130.2 for an order interdicting the JSC from continuing with its deliberations aimed at making a finding of gross misconduct against me in those impeachment proceedings, pending the final determination of the constitutional dispute that I have referred to the Constitutional Court by way of leave to appeal in terms of Rule 19 of the Rules of the Constitutional Court;

130.3 for an order interdicting the JSC from continuing with its deliberations aimed at advising the President of the Republic of South Africa to suspend me from performing my judicial functions and, specifically, my functions as Judge President of the Cape High Court pending the final determination of the constitutional dispute between the Judges of the Constitutional Court and me;

130.4 for an order interdicting the JSC from performing any function that in any way advances those impeachment proceedings or any other proceedings affecting me or my rights adversely in any way pending the final determination of the constitutional dispute between the Judges of the Constitutional Court and me;

130.5 in the alternative to the relief sought in 130.2 - 130.4 above, for an order interdicting the JSC from performing any of the functions mentioned in paragraphs 130.2, 130.3 and 130.4 pending the final determination of my application for the review, correction and setting aside of the JSC's impeachment proceedings against me;

130.6 in addition to the interim interdict, for a rule nisi, operating as an interim order, calling upon the JSC to show cause, if any, on a date to be determined by this Court, why the impeachment proceedings should not be reviewed, corrected and set aside as being unlawful and thus void ab initio.

131 The interdict application is sought on an urgent basis. The review application is not, but the rule nisi is.

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MANDLAKAYISE JOHN HLOPHE