Judge President Hlophe is deeply disappointed by the decision of the Supreme Court of Appeal issued last week, March 31, 2009 (see here). He has carefully studied the judgment and is currently taking urgent steps to appeal the Judgment. We note with grave concern that the SCA has, in its zeal to assist the Constitutional Court judges, essentially thrown the notion of judicial independence and JSC's investigations of judicial misconduct into complete and utter chaos. The suspicious timing of the issuance of the decision and the JSC's scheduling of its hearings on the merits of the complaints and counter-complaints gives an appearance of a manipulation of the judicial process and is antithetical to the notion that justice must not only be done but must be seen to be done. We unequivocally state that the JSC has embarked on a course of action which casts a dark shadow on the integrity of the SCA's adjudicative process as follows:

All along, the defendant judges and the JSC had taken the position that they could not proceed with a hearing on the merits of the complaints and counter-complaints pending before the JSC.  Their excuse was premised on the notion that the majority decision in the WLD granting declaratory relief and the subsidiary findings "would be binding upon the JSC."   They argued that the majority "effectively usurped and pre-empted the exclusive jurisdiction of the JSC. That body alone is authorised to investigate allegations of gross misconduct. Not only is the exclusive jurisdiction of the JSC undermined, but its duty properly to investigate allegations of gross misconduct is substantially impeded. It may no longer embark upon an enquiry, the effect of which would be to contradict the findings of the Court. The capacity of the Judges to defend themselves against Hlophe JP's complaint (and to present the complaint against Hlophe JP) before the JSC is likewise substantially inhibited."

Accordingly, the JSC was hamstrung by the pending SCA appeal and could not perform its duty unless and until the appeal was resolved.  Judge Mpathi who wears two hats as both the President of the SCA and the JSC appears to have conjured up a magical solution to that dilemma and demonstrated clairvoyance about both the substance and timing of the SCA ruling which cannot be matched by any Sangoma. Mpathi simply scheduled a JSC hearing on the merits for April 1, 2009 and the SCA obliged the JSC by issuing a decision against J.P. Hlophe on March 31, 2009 and thus clearing the way for the JSC to proceed with the most biased investigative techniques ever imagined.  It stretches credulity to a breaking point and defies logic to suggest that there was no coordination between the two processes (SCA and JSC) and that Mpathi could confidently schedule a firm so close in time to the SCA decision without having had off the record discussions with his SCA colleagues as to when they intended to issue a ruling against Judge Hlophe.  

The timing of the ruling and the JSC scheduling of a hearing all give the appearance that they were synchronized to deny the parties a fair and adequate opportunity to study the judgment or to pursue appeal options - it appear to be aimed at forcing the parties into a hearing before the JSC before they can pursue any avenues for appeals.  Against this background the JSC firmly and confidently rejected JP Hlophe's request for a postponement of the hearing just three days before that.  Certainly, both the SCA and the JSC owe the discerning South African public an explanation about these matters. Further, we note with deep concern the SCA's actions which preceded the issuing of the decision and which raised serious questions about the Court's impartiality. We note that the SCA on its own initiative invited members of the Pretoria Bar, well-known adversaries of JP Hlophe, to file papers as amicus curiae or "friend" of the Court.  Inviting members of the Pretoria bar which has a well known record of vilifying Judge President Hlophe and of campaigning for his removal from the bench not only raises serious questions about this Court's impartiality but also gives the appearance of stacking the odds against Judge President Hlophe.

Substantively we note with utmost respect that the SCA decision is not just seriously flawed - it is completely wrong.  The Court ruling that the defendants (Constitutional Court judges) in laying the complaint were not exercising a judicial function or acting as a Court of law and must have been acting in their private capacity is belied by the facts as they appear on the record.  The thirteen (13) Concourt judges admitted that they used the Court's stationery and/or letterhead and issued press statements on the same to convey to the public that Judge President Hlophe had committed an offence against the Court and the judges.  Their statement read in part, "a complaint that the Judge President of the Cape High Court, Judge John Hlophe, has approached some of the judges of the Constitutional Court in an improper attempt to influence this Court's pending judgment in one or more cases has been referred by the judges of this Court to the Judicial Service Commission, as the constitutionally appointed body to deal with complaints of judicial misconduct."  It also stated "The Court has referred the complaint against Judge Hlophe to the Judicial Service Commission (JSC), the constitutionally appointed body responsible for addressing judicial misconduct."  

They published their complaint that Judge President Hlophe sought to improperly influence Acting Judge Chris Jafta and Judge Bess Nkabinde (both judges of Constitutional Court) to decide the "search and seizure" case to the benefit of Jacob Zuma. They also claimed that the alleged attempt by Judge Hlophe to influence Judges Jafta and Nkabinde "was calculated to have an impact on... the capacity of the Court...to adjudicate in a manner that ensures its independence, impartiality, dignity, accessibility and effectiveness as required by Section 165(5) of the Constitution." According to the SCA's logic, a judge or any official who abuses power by taking advantage of the judicial office for personal gain or retaliation will be free of liability as long as he claims that he was not really performing his official function. That is not and can never be the law - a judge must avoid all activity that suggests that his/her decisions are affected by self-interest or favouritism, since such abuse of power profoundly violates the public's trust in the judiciary.

We note that the position articulated by the SCA has been roundly rejected in all major democracies around the world. Countries such as the US and Canada recognize that even an official who acts under "colour of law" meaning that the person is using authority given to him or her by law can still be held liable even if he abuses the powers or exercises them improperly. See, McKoski, Ray,Ethical Considerations in the Use of Judicial Stationery for Private Purposes; Penn State Law Review, Vol. 112, No. 2, 2007 in which the author notes that the judiciary is endowed with great power and prestige in order to ensure its independence from the executive and legislative branches of government. Because of the serious threat to the integrity and independence of the judiciary caused by the misuse of the judicial office, a central purpose of all canons of judicial ethics is to eliminate abuse of a judge's power and prestige. The use of official court stationery for personal correspondence exploits the judicial office by creating the impression that the judge expects the communication to be given extra weight or special consideration because of the judge's official status.  

The SCA misses this point entirely and even worse, it ignores the Concourt judges' own admission that a complaint "has been referred by the judges of this Court."   The SCA's ruling mischaracterizes the nature of the Concourt judges' abuse of authority and related violations by ignoring the fact that these judges used the trappings of their official status as judges.   It erroneously assumes that liability for constitutional violations cannot be established where absent proof that the Concourt judges were officially and formally acting as a court.  Judge President Hlophe makes this point crystal clear when he asserts in his Founding Affidavit that: "I was never consulted by any of the judges of the Constitutional Court before a decision was taken by the Court to accuse me of gross misconduct in public and before the Judicial Service Commission.  The alleged complaint and media statement clearly stated that the decision to accuse me of gross misconduct in public had been that of the Court, supported by all the judges of the Constitutional Court.  I have now been informed how that decision was arrived at by the judges of the Constitutional Court."

The SCA committed a gross error in concluding that "there is no authority to which we were referred or of which we are aware - whether in decided cases or in judicial protocols anywhere in the world - that obliges a complainant to invite a judge to be heard before laying the complaint." Unlike ordinary citizen complainants, these judges have a sworn duty to protect and defend judicial independence and must observe restrictions that may not be applicable to ordinary citizens even during the lodging of a complaint with the JSC. This is the duty to act with restraint enshrined in the Basic Principles on the Independence of the Judiciary, endorsed by the UN General Assembly in 1985. Principle 8 states:

''8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary .'' 

It is clear that judges' freedom of expression including their "right" to file complaints and to publicize the filing of such complaints through press releases are always subject to the requirements that they exercised in a manner " as to preserve the dignity of their office and the impartiality and independence of the judiciary." These judges have a duty to act "in a reserved manner" when exercising their free speech rights and are duty-bound to respect and protect the security of tenure for judges which " is the first of the essential conditions of judicial independence"  Valente v. The Queen, [1985] 2 S.C.R. 693, at 694. And finally, the SCA demonstrates a frightening misunderstanding of the concept of the security of tenure for judges, which is the first of the essential conditions of judicial independence.  It states that it "will always be distressing for a judge to learn in the media that he or she has been accused of misconduct but that seems to us to be an inevitable hazard of holding public office. The remedy that is available to a judge who finds that he or she is in that position is to insist that the body charged with investigating such a complaint does so with expedition so as to clear his or her name." It does not address the threat to a judge's security of tenure which is threatened when untested and unproven allegations are relied upon to drive a judge from the bench even before the investigation has started.

Statement issued by Musa Xulu of the Justice for Hlophe Alliance, April 6 2009

ABOUT THE JUSTICE FOR HLOPHE ALLIANCE:

"Justice for Judge President Hlophe Alliance is a nonprofit organization that works to defend and seek justice for Judge President Hlophe and all black judges who find themselves unfairly attacked for their strong, principled and unwavering pro-transformation stance.  Our goal is to build a public consensus behind independent and non-racist judiciary and respect for the rights, human dignity and due process rights of the hardworking judges who form the pillar of our justice system and who are often subjected to unfair and unwarranted politically motivated attacks.  The attack on Judge Hlophe is not an isolated incident, but stands at the confluence of two different trends. First, it is the latest ad hominem, partisan attack on judges for the substance of their decisions as exemplified by the frivolous lawsuit by Winston Nagan. Second, it is a further step in a perilous flirtation with the idea that we are better off without independent judges to ensure the rule of law applies, not only to average citizens, but equally to those in power as exemplified by the General Council of the Bar and Justice Minister Surty's attack on Judge Hlophe.

Justice for Judge President Hlophe Alliance formed in response to the relentless attacks on Judge President Hlophe by anti-transformation elements within and outside the judiciary as well as the infamous and opportunistic attacks on him by unsavoury characters who have an axe to grind with Judge President Hlophe.  Justice for Judge President Hlophe Alliance emerged as a coalition of Judge President Hlophe's friends, colleagues, concerned attorneys and advocates and other concerned citizens who believed Judge President Hlophe is being persecuted for his strong and principled fight for transformation in our judiciary.   Justice for Judge President Hlophe Alliance will unveil a well-orchestrated campaign around the issues where the rights of Hlophe and other black judges are violated, and empower the silent black majority to hold anti-transformation elements accountable and to ensure a truly transformed and independent judiciary." 

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