RESPONSE TO THE STATEMENT OF CHIEF JUSTICE LANGA FILED ON BEHALF OF THE CONSTITUTIONAL COURT JUDGES 30 JUNE 2008
I, the undersigned
MANDLAKAYISE JOHN HLOPHE
do make the following statement:
1. My response to the statement filed by Chief Justice Langa on behalf of the Court will deal with the issues in the following manner;
1.1. The media statement issued by the Constitutional Court; the statement of 12 June 2008 and the statement purporting to give details of complaint of the Judges of the Constitutional Court issued in the name of the Chief Justice;
1.2. My version of the facts;
1.2.1. The meeting and conversations with Justice Jafta;
1.2.2. The meeting and conversations with Justice Nkabinde;
1.3. Whether my actions were directed at influencing the Court as alleged;
1.4. Whether the concerned judges' actions were directed at protecting the Constitution, the administration of justice and the dignity of the Constitutional Court in particular, and the independence of the judiciary, generally. In addressing this aspect it will be clear that the conduct of the Justices of the Constitutional Court undermined the basic values and tenets of our Constitution, that there was an element of impropriety in the conduct of, in particular, the Chief Justice Pius Langa and the Deputy Chief Justice Moseneke, the motive for which remains a mystery, but more likely being an inexplicable desire to get rid of me, to get me impeached, and to suggest that I am not fit to be a judge anymore,- the kind of bandwagonism that has been in vogue since I published my racism report a few years ago. I make bold to link this to the racism report fully cognisant of the fact that both Langa and Moseneke are Africans and Black, but the point here is that for their own reasons, they have climbed on the bandwagon of those who, since the racism report, have been campaigning for my impeachment on the basis that I am ill-qualified to be a judge. The way they have seized on my so-called attempt to improperly influence judges of the Constitutional Court, and the way they rushed to the media to cause a public sensation about what I was alleged to have said without even as much as raising this issue with me by phone, email, or letter, just to get my version at least before going public with untested allegations, when those to whom I was alleged to have made the alleged pronouncements had clearly disavowed themselves of any inclination to complain at all,- all this conduct clearly shows a motive by Chief Justice Langa and Deputy Chief Justice Moseneke to get rid of me at all costs, whatever it took, even if it meant dealing with me in public without due process, or even bringing the whole judicial edifice crashing down in disgrace- anything at all as long as, in the process, in their view, I would be got rid of. A close examination of the conduct of the Chief Justice and Deputy Chief Justice- their total disrespect for my constitutionally entrenched rights to privacy and dignity shows a singlemindedness that can only be attributed to people who were acting with an ulterior motive, as I will demonstrate hereunder.
THE MEDIA STATEMENT ISSUED BY THE CONSTITUTIONAL COURT ON 30 MAY 2008; STATEMENT OF 12 JUNE 2008 AND 17 JUNE 2008
2. I dealt with how the media statement of the Constitutional Court was forwarded to me by the Chief Justice and thereafter to numerous persons associated with different organizations in paragraph 1 of my complaint.
However, having read the statement of Chief Justice Langa, it is necessary to comment on a number of issues that I believe must concern the JSC and the public. The latest statement issued by Chief Justice Langa has very little evidentiary weight in support of allegations that I tried to improperly influence the Court. It is very concerning however that an attempt by the Court has in this statement been made to craft a clever way out of the conundrum created by their reckless disregard of my constitutional rights by accusing me in public without the details of the complaint.
3. On 6 June 2008 the Acting Deputy Chief Justice O'Regan approached the Judicial Services Commission to request an extension to file the details of the alleged complaint. What is clear from the request made to the JSC is very startling. The Acting Deputy Chief Justice did not tell the JSC that the so called "complainant judges" had indicated to her and the Chief Justice and Deputy Chief Justice as far back as 28 May 2008 that they were not prepared to file a statement. With respect, the Acting Deputy Chief Justice failed to convey the correct position in respect of the so called "complainant judges" to the JSC. Had the JSC been told about this position, a different procedure may have been followed. In light of this, the conclusion is inescapable that the period between 6 and 13 June 2008, was going to be utilized to bring undue and inappropriate pressure to bear on the so-called complainant judges to act contrary to their conscience, to stick to their position and bear the consequences or comply with the position taken by the Chief Justice, the Deputy Chief Justice and Acting Deputy Chief Justice. Clearly this misrepresentation resulted in the JSC eliciting a complaint from the judges - a procedure I do not believe is fair and appropriate.
4. On 12 June 2008, a statement was issued by Justice Nkabinde and Justice Jafta in which they indicated that "we wish to state that we have not lodged a complaint and do not intend to lodge one and, consequently, we are not "complainant judges". Under normal circumstances this would have been the end of the matter. However, the unprecedented conduct of the Judges of condemning me through the media without the details of the complaint does not permit such a graceful exit from the embarrassing situation created by this misguided exercise of judicial solidarity.
5. Soon after the public in terms of the media statement was informed by the judges of the Constitutional Court that there was a complaint against me from all the judges, the JSC requested on 2 June 2008 the Constitutional Court judges to provide it with the details of the complaint. On 5 June 2008, I, through my instructing attorney forwarded a letter to the JSC requesting amongst others, the particulars of the complaint. On 6 June 2008, the JSC met to consider the alleged complaint against me. Ironically, on the same day, the JSC informed the public that the meeting had been "convened to consider written communication from the complainant judges conveying the facts underlying the complaint", but because there was no complaint the JSC was forced to reconvene. The judges had informed the JSC and through it the public that "they might require at least the latest till 13 June 2008 to file" the facts supporting the statement. A letter from Justice Howie was forwarded to me which was addressed to all the judges of the Constitutional Court dated June 2008 in which the following was recorded;
"With regard to the factual details of the complaint, I have been requested by the Commission to ask for the details be provided in the form of a statement by each of the two judges concerned and to draw attention to the attached letter from attorneys acting for Judge President Hlophe, that seeks particularity which the judges may incorporate in their statements.
Accepting that the judges might require until 13 June 2008 to furnish the statements, the Commission has decided that Judge President will have 10 calendar days ... "
6. The Judges of the Constitutional Court therefore represented and through the JSC informed the public that it required until 13 June 2008 to file a complaint.
On 12 June 2008, the judges of the Constitutional Court, Nkabinde and Jafta filed a joint statement in compliance with the undertaking given to the JSC that "they might require at the latest till 13 June 2008" to file the facts underlying the public statement made by the Judges. That statement speaks for itself and I attach it as "MJH1".
7. In light of the statement filed by Judges Nkabinde and Jafta the natural result would have been that I am cleared of any alleged wrong-doing by the JSC; but that was not to be my fate. It is recorded in paragraph 1 of the statement of the Chief Justice that the "other judges had no knowledge that Jafta AJ and Nkabinde J had taken this position. The net result was that the lodging of this statement was once again delayed". What the statement does not say is the following;
7.1. That according to the statement of 12 June 2008, the Chief Justice and the deputy Chief Justice had known about the position taken by Judges Nkabinde and Jafta since 28 May 2008. The voices of Judges Nkabinde and Jafta were suppressed in the statement issued by the Court on 30 May 2008 and the public was given the impression that there was unanimity by the Judges of the Court. Such a position was incorrect and to a large extent contrived given that in paragraph 2 of the statement of 12 June 2008, Judges Nkabinde and Jafta state "We place on record that, from the moment the matter about Judge President Hlophe's visits was reported by O'Regan ADCJ to the Deputy Chief Justice Moseneke, we have on a number of occasions informed Chief Justice Langa and Deputy Justice Moseneke that we were not intending to lodge a complaint and neither we were willing to make statements about the matter." In paragraph 4 the statement read "We further record that on 28 May 2008, we attended a meeting called by Chief Justice Langa and Deputy Chief Justice Moseneke. We had occasion to discuss the issue that formed the subject matter of the complaint against Judge President Hlophe. We again made it clear to them that we were not intending to lay a complaint against Judge President Hlophe and neither did we intend making statement about the matter." This position of Judges Nkabinde and Jafta was suppressed in the media statement issued on 30 May 2008 and as I show, was not disclosed to other judges of the Constitutional Court by Chief Justice Langa and Deputy Chief Justice Moseneke.
7.2. According to paragraph 36 of the statement of the Chief Justice a meeting was called by judges on 29 May 2008. What the Chief Justice and the Deputy Chief Justice omitted to mention to the judges who were present at that meeting are the sentiments conveyed to them by Judges Nkabinde and Jafta on 28 May 2008 that; "We made it clear to them that we were not intending to lay a complaint against Judge President Hlophe and neither did we intend making any statement about the matter." Instead in the meeting of 29 May 2008, the Chief Justice and Deputy Chief Justice, according to paragraph 36 suppressed and blocked other judges from subjecting Judges Nkabinde and Jafta to "questioning given the distressing circumstances In which they were." This was clearly a misrepresentation of the position conveyed to them on 28 May 2008 by Judges Nkabinde and Jafta. It is very disturbing that the Chief Justice and the Deputy Chief Justice shielded Judges Nkabinde and Jafta from questions on these unbelievable grounds. Nothing can explain why at the meeting of 29 May 2008 the Chief Justice and Deputy Chief failed to inform other judges of the position recorded by Judges Nkabinde and Jafta in their statement of 12 June 2008. Clearly this was a manipulation of the facts and an abuse of the office entrusted to the Chief Justice and the Deputy Chief Justice to achieve judicial solidarity by false pretences. The marshalling of the entire court to appear to be in unison in supporting an unprecedented decision to condemn me in public on the basis of a one-sided version is inimical to the conduct expected of any judge, let alone the top two judges in the country. The decision, arbitrarily arrived at, in circumstances where there had been no hearing in terms whereof I should have been called upon at the very least to make representations before such a decision was taken, the decision arrived at being that there was a case of improper conduct that warrants the Court taking such a vindictive position, I submit with respect, was not that of Judges Nkabinde and Jafta but that of the Chief Justice and the Deputy Chief Justice, Justices O'Regan and Mokgoro. This Judges Langa and Moseneke were able to achieve by withholding from the public and some of their colleagues the position conveyed to them by Judges Nkabinde and Jafta on 28 May 2008 and on other numerous occasions.
7.3. In paragraph 37 of the statement of the Chief Justice it is recorded that there was a full discussion in the meeting of 29 May 2008 of the issues reported to them by the Chief Justice. What is not mentioned in paragraph 37 is how there could have been a full discussion when judges were manipulated into not asking Judges Nkabinde and Jafta any questions because they were allegedly distraught. The description of the emotional state of Justice Nkabinde and Jafta is inconsistent with what they had told the Chief Justice and his Deputy Justice in previous meetings with them. Here too, the meeting was manipulated to create an atmosphere of a terrible intrusion into the correct workings of the Court. It is unfortunate that the mobilization of the judges of the Court was done without all the facts being conveyed to the Judges by the Chief Justice and Deputy Chief Justice, especially the position of their colleagues conveyed to them on 28 May 2008. The natural result of withholding information about the true position reflected in the statement of 12 June 2008 is that other 'judges of the Court had no knowledge that Jafta AJ and Nkabinde J had taken this position".
7.4. Once more at a meeting held on 30 May 2008, the Chief Justice and Deputy Chief Justice failed to place on record the position taken by Judges Nkabinde and Jafta contained in their statement of 12 June 2008.
7.5. In paragraph 41 of the statement of the Chief Justice it was clear that Justice O'Regan, the Acting Deputy Chief Justice, could not have shown such overzealousness to obtain a statement from persons who had already conveyed what their position was if she knew what the Chief Justice and the Deputy Chief Justice on 28 May 2008 knew.
7.6. In paragraph 44 of the Chief Justice's statement, in which he refers to the weekly conference meetings of the judges, it is once again clear that the Chief Justice and Deputy Chief Justice again did not inform the judges about the position of Judges Nkabinde and Jafta conveyed to them on 28 May 2008. The result of withholding this information is that the Judges were hoodwinked into supporting a decision without the knowledge of the position taken by Judges Nkabinde and Jafta, and were therefore surprised at their joint statement of 12 June 2008.
7.7. The decision to appoint Counsel to represent the complainant Court is unprecedented and has never been explained to the public. Paragraph 44 does not give the public any basis for the decision to appoint Counsel. In my view, the judges should have sought Counsel's advice before launching a public campaign to malign my name before a proper complaint had been filed with the JSC. Once again, I beseech this august body to go out of its way and find out what the motivation was of this conduct by the country's most eminent judges.
7.8. In paragraph 45 of the Chief Justice's statement, it is stated that Counsel appointed to represent Judges Nkabinde and Jafta and those appointed to represent the Court, would work together to "ensure that the statements would be ready by 13 June 2008." In a very disturbing attempt to manipulate the true facts and position taken by Judges Nkabinde and Jafta and conveyed to the Chief Justice and Deputy Chief Justice in numerous meetings with them, the Court had by 11 June 2008 prepared a draft statement prior to Judges Nkabinde and Jafta submitting the facts of the complaint. Once more it seems that the Chief Justice and the Deputy Chief Justice failed to convey to Counsel for the Court the position of Judges Nkabinde and Jafta conveyed to them in numerous meetings and particularly on 28 May 2008. Again the failure by the Chief Justice and Deputy Chief Justice to convey to all the judges what Judges Nkabinde and Jafta conveyed to them in numerous meetings was deliberately ignored in order to foment this unfortunate solidarity. The Chief Justice and the Deputy Chief Justice were hell-bent to maintain a veneer of judicial solidarity even if it meant they had to conceal complete and true facts. Once again I invite this body to find out what the true motives of these colleagues were. Given the nature of the personalities involved in the cases which the Constitutional Court had to decide, it does appear that there may well have been a political motive on the part of the Chief Justice and his Deputy.
7.9. In paragraph 47 of the Chief Justice's statement, it is stated that Deputy Chief Justice held a series of conversations with both Judges Nkabinde and Jafta to finalize the potions of the statement that referred to them prior to 12 June 2008. Again these conversations were held against the background of what Judges Nkabinde and Jafta had conveyed to him in numerous meetings including that of 28 May 2008.
It is clear that the process followed and actively encouraged by the Chief Justice and Deputy Chief Justice was designed to subvert the will of their colleagues and the series of conversations were an attempt to persuade them to join the two of them in their view of the matter, a view they recklessly pursued, and has brought this country's judiciary where it is today. On 12 June 2008 and despite the intense interactions between the Deputy Chief Justice and Judges Nkabinde and Jafta recorded in paragraph 47, a joint statement was issued by Judges Nkabinde and Jafta in which they distanced themselves from the complaint.
7.10. The parched up statements pasted in the Chief Justice's statement that are attributed to Judges Nkabinde and Jafta are observably inconsistent with the position that they took on 12 June 2008. The statement by the Chief Justice does not explain the basis on which Judges Nkabinde and Jafta belatedly and inexplicably decided to take a position contradicting their statement of 12 June 2008.
7.11. Paragraph 50 of the Chief Justice's statement does not say what the reaction of other Judges was to the fact that this position of Judges Nkabinde and Jafta had not been conveyed to them, but clearly this critical information was not conveyed to the Judges by the Chief Justice and Deputy Chief Justice who had knowledge of this position.
8. What is also very disturbing concerning is the Chief Justice's account of what happened after 12 June 2008 when Judges Nkabinde and Jafta filed their statements. In a bid quite clearly calculated to manage the crisis created by the position taken by Judges Nkabinde and Jafta, an urgent meeting was held on Friday 13 June 2008. In that meeting Judges Nkabinde and Jafta were not present. Judges Madala, Skweyiya and Sachs were also not present in the meeting. There is no explanation given for their absence in the meeting, but it is clear that there was no unanimity on the correctness of the Court's decision to transform itself into a complainant. Again it is startling that in that meeting a decision was made to reschedule a meeting in which Judges Nkabinde and Jafta would be asked to attend. What is not said is whether the other absent judges would also be invited to attend that meeting. Clearly again, pressure was being brought to bear on the junior colleagues of the Court by the Chief Justice and Deputy Chief Justice in order to perpetuate the pretence of a united court. Again it is clear that the Chief Justice and Deputy Chief Justice failed to inform the other Judges about the position conveyed to them by Judges Nkabinde and Jafta which is consistent with their statement of 12 June 2008.
9. Paragraph 52 of the Chief Justice's statement does not give details of who at that meeting was present, whether the Chief Justice and Deputy Chief Justice in fact corrected the false impression that their silence to the other judges created of the true position held by Justices Nkabinde and Jafta. Paragraph 52 simply states that this statement is a product of that meeting. What is startling in this paragraph is that the Chief Justice gives nothing more about the meeting; there is no mention of who of the Constitutional Court judges was or were present and who was or were absent. It is unclear whether the Judges of the Constitutional Court sought permission from the JSC to file their complaint on 17 June 2008 and not 13 June 2008 as represented to it by Acting Deputy Chief Justice O'Regan. If they sought the permission, it is not clear what reasons they advanced to it to motivate their late filing of the details of the complaint.
10. ln paragraph 57 of the statement of the Chief Justice, there is, in my respectful view, another attempt to mislead the JSC and the public. I say so because it appears that there is, in the office of the Chief Justice, a method of unseemly informing the public through well-orchestrated media leaks. For example the complaint was forwarded to the Business Day newspaper under cover of the Constitutional Court. The Chief Justice states that "Pursuant to
the information conveyed by Justices Nkabinde and Jafta, the Constitutional Court made the complaint on 30 May 2008". What this remarkable claim does not disclose is the information conveyed by Justices Nkabinde and Jafta to the Chief Justice and his Deputy Chief Justice contained in the statement of 12 June 2008.
11. The orchestration and manipulation of this campaign through the media is not surprising to say the least. It is unfortunate that the JSC itself has finally got around, albeit belatedly, to stating that the public forum is not appropriate for determining alleged judicial misconduct against me. It leaves me with the very strong impression that this is, as the cliché goes, too little too late, and quite frankly, disturbingly insincere1. Understandably, the JSC laments "an apparent widespread disrespect for confidentiality. .. " as evidenced by the public disclosure in the press of a communication addressed by Justice Nkabinde and Justice Jafta to the JSC and which had been copied only to the deputy Chief Justice Moseneke. It also expresses "misgivings" about a similar disclosure of a communication addressed by the JSC chair to the Chief Justice and Judges of the Constitutional Court. I find it difficult to understand why the JSC feigns this concern about these media leaks, when it should be looking no farther than the Constitutional Court itself for the sources of these unauthorized leaks. (Footnote: Nowhere has the JSC, either publicly or privately, condemned initiating a process under its rules by breaching the confidentiality media without the details to back up the complaint.)
It was the Constitutional Court judges-or clearly the Chief justice and the Deputy Chief Justice-that elevated press releases and "disrespect for confidentiality" as an appropriate manner of initiating a complaint of judicial misconduct. As stated in my complaint, that position, taken by the Judges, deprived me, inter alia, of my constitutionally protected right to fair administrative process. Even a call from the Chief Justice or his delegate would have provided me with an opportunity to place my side of events- a step that would have at least enabled the Judges to take a decision on the basis of versions from all the persons involved. The adoption of group thinking to victimize me in public is so inimical to the office of any judge, who must at all the times act impartially, independently without fear or favour. One would expect this to be the view of the two top judges in the country, to say nothing that they would do this to a colleague.
12. ln addition, the Judges' handling of this matter has deprived the JSC of an opportunity to manage the process in a fair and impartial manner. As far as it is within the JSC's powers to regulate the process of determining an issue before it, it is clear that publication of the media statement, the statement of the Chief Justice has stripped it powers to consider whether a complaint should be handled in a confidential manner or not. The leaks to the media clearly undermine the capacity of the JSC to determine a fair process to deal with my complaint. The Chief Justice and his office's masterminded leaks to all and sundry the world over every time they respond to the issues raised by the JSC has denuded the JSC's pending assessment of the truth or otherwise of the allegations of all confidentiality. Their conduct has created a parallel court of "public opinion", like any lynching mob, sometimes succeeds in clouding the vision of those who must sit in judgment of the issues. This parallel public "trial process" in which I play no part because I have studiously avoided leaking anything that should be coming to the JSC, but which destroys me every time the headlines pronounce on my guilt even before I have been heard, creates an atmosphere in which even if the JSC were to be inclined to find for me, might just feel that the so-called "weight of public opinion" is so weighted against me that, "in the public interest" it would be impolitic or untenable to give a verdict that might be in line with the reality presented by a calm and objective assessment of the facts. The judges have pre-empted the fair processes that the JSC could have followed by removing the element of confidentiality under the guise of protecting the judiciary. The indiscreet manner in which the judges handled the alleged complaint resulted in a situation where the JSC's fair procedures and rules were undermined and severely compromised. The judges chose for the JSC the procedure which would be followed to deal with the alleged complaint. The judges' handling of the alleged complaint was in fact the polar opposite of due diligence. They filed a media statement which they labeled a complaint at a time when they knew that the two judges allegedly approached by me "had on a number of occasions informed Chief Justice Langa and Deputy Chief Justice Moseneke that [they] were not willing to lodge a complaint and [typo] neither were they willing to make statements about the matter". At the time the press release was issued by the Judges; at the time that they represented to the JSC and the public that a statement from the two judges would be forthcoming in support of the media statement; they knew that the two judges had "not lodged a complaint" and did not intend to lodge one and, consequently they were not "complainant judges".
13. A situation now arose, in the statement filed by the Chief Justice following the opportunities granted to them by the JSC to file a complaint, that the judges had a further opportunity this time to consult with counsel- a step I believe should have preceded the filing of the media statement- to submit a better and improved complaint. I do not believe that the JSC should have invited the Constitutional Court judges to complain at all or to complain properly. It is one of the remarkable features of this saga that Judges are now represented in order to defend their failure to give effect to a procedural fairness requirement before filing a complaint against me. Nothing undermines the credibility of the judiciary than this belated attempt to cure a constitutional defect by judges of the Constitutional Court. Worse still, nothing undermines more the Constitution than the spectacle of judges of the highest Court trying to justify a failure to follow proper and fair procedures for the laying of a complaint against me to the JSC.
14. The dilatory tactics that followed the JSC's timetable and the seemingly contradictory statements from the two "complainant judges" further fuels speculations that judges were subjected to undue pressure to change their positions several times in an effort to implicate me in judicial misconduct. The prevarication of the judges in this vicious attempt to remove me as a judge in light of the glaring constitutional errors and procedural missteps, in my respectful submission, certainly runs the risk of eroding the integrity of our judiciary. The duty to protect the Constitution and the judiciary does not give the judges the right to do so in violation of constitutional rights. The suggestion that the judges are exempted from acting in a fair manner since this matter would be decided by the JSC is insensitive, overbearing and inconsistent with the office of a judge. Judges are enjoined to give effect to the Constitution and are not exempted from observing constitutional rights and basic decorum even when they file a complaint against me. The office of a judge, and the dignity that attaches thereto, is not only to be accorded respect and dignity by the judges themselves only when they write judgments and sit in Court or some such duties which judges perform on a day to day basis. The office demands strict observance of all rules that inform the office of judgeship. A judge does not throw out of the window basic tenets of the rules of natural justice simply because s/he is a complainant. In any event, judges are bound by the Constitution to respect and protect constitutionally entrenched rights. These judges have not done so by a long shot in this case.
15. While I believe that the JSC will determine the fairness of the Judges' conduct, I suggest that the legal quandary and procedural absurdity could have been avoided if our 11 judges, but more so the Chief Justice and the Deputy Chief Justice, had carefully considered their positions with regard to their duties to the Constitution and international jurisprudence. The constitutional obligation imposed on the Judges by section 39 of our Constitution is to "promote the values that underlie an open and democratic society based on human dignity, equality and freedom but it also requires them to have regard to international law and practices." This obligation is particularly important where the Judges are acting in their official designations. The Judges are not exempted from complying with procedural fairness requirement because they were too emotional or distraught after hearing a one-sided version of the story-from their colleagues.
16. The judges ignored the constitutional values and by adopting a group culture of resistance or indifference to them undermined critical attributes of a fair process. Calls by the Black Lawyers' Association (BLA) that the rule of law and judicial independence must be respected have been met with cynical dismissal or derisively dubbed expressions of racial solidarity with me. The silent majority is not allowed to ask why the constitutional court judges, including the Chief Justice who is the chairperson of the JSC, needed to be reminded by the latter to file proper statements supporting their allegations against me. The public was not provided an opportunity to ask piercing questions why Justice O'Regan and her colleagues deserved extra time and opportunity to "consult with counsel" when asked to provide facts supporting the allegations of judicial misconduct they felt emboldened to first publicize in
17. Certainly, Judges of our Constitutional Court are not expected to scandalously accuse anyone in public on the basis of completely untested and unproven facts to be given to the public in the manner impugned. Confidentiality prior to the JSC assuming jurisdiction and its determination of the alleged complaint is indispensable to preserving the integrity of our judicial system and the credibility of our judges. It is above all else required to protect the integrity of the JSC adjudicative processes. The judges of the Constitutional Court had no right to prejudice and to pre-empt the JSC process by issuing press statements which were clearly intended to provoke public condemnation and my public lynching. Indeed one has to look at the damaging commentaries published in the media labeling me as an individual who does not respect constitutional values and my ethical obligations.
18. The conduct of the Judges of the Constitutional Court has provided the space and opportunities for public interference with the ethical life of the Judges when they are in Chambers. For example, I was told by my predecessors that conversations that take place in chambers are generally to be regarded as confidential, unless such confidentiality protects a breach of the law, generally it is undesirable that judges amongst themselves are restricted from talking about anything including matters that are before them. It is a necessary interaction and in most cases ensures that judges stay focused to the process of developing the law in accordance with the Constitution. Keeping such conversations as confidential is necessary, especially because Judges are expected to speak only through their judgments. A peep into these conversations may open the judges up to all sorts of pressures that may compromise the judicial decision-making processes. Unlike judges in the lower Courts, the Constitutional Court judges are in a more demanding space of judicial decision-making. A decision of a judge may be corrected on appeal or review but Constitutional Court judges have one chance to get the issues right. Once they have spoken, it is the law. I therefore believe that confidentiality of conversations between judges should not be curtailed-that conversations between judges held in the privacy of their chambers may sometimes be justifiable.
19. The publication of a media statement as a precursor to launching a complaint by the judges of the Constitutional Court has compromised any fact finding investigative procedure that the JSC may have considered appropriate and the public calls for public hearings in the complaint against me will result in an unmitigated constitutional fiasco. To be sure, the public airing of the judicial dirty washing will be much more than a run-of-the-mill investigative legal proceeding. The pivotal questions at the heart of these proceedings will quickly become this: did the Constitutional Court judges commit gross misconduct by making false representations to the public about the source of the complaint against me, and did the Court's leadership lie by implying that all 11 judges unanimously agreed to file the extant complaint against me?
Ironically, the statements by Justices Jafta and Nkabinde that they told the chief justice, his deputy and O'Regan that they were not lodging a complaint and were not intending to lodge a complaint against me can only lead to one inescapable conclusion, namely, that the justices were either fibbing or did not level with the public when they implied that all their colleagues were united in solidarity against me.
20. The use of the media has a very distorting effect - a situation that is untenable for the integrity of the judiciary. Take the example of the newspaper (City Press) accounts of the Constitutional Court judges' allegations against me; the alleged attempt to improperly influence other judges consists of the following acts: that I approached Justice Nkabinde and Justice Jafta "individually in their offices," and I "basically told them "I am going to be the next chief justice. There will be a lot of changes in the judiciary. You must think about your future" before telling them to rule in favour of Zuma." Even accepting the dubious claim that I am hell-bent on securing support for Zuma, it begs the question why it is alleged that I discussed the case only with two relatively junior judges whose influence to the collective thinking at the court is likely to be marginal. Related to that why would I, in light of the security of tenure enjoyed by judges, make an absurd and vacuous promise to these judges, and empty threats about their losing jobs? According to City Press' convoluted theory, I am alleged to have promised security of tenure to these judges in return for their favourable pro-Zuma ruling. What this report misses is that these judges already enjoy security of tenure. The latter is a constitutional or legal guarantee that a judge cannot be removed from office except in exceptional circumstances and for proven gross misconduct or incompetence. Security of tenure offers protection, by ensuring that a judge cannot be victimized for exercising their powers, functions and duties. It enables the democratic or constitutional process through which a judge is appointed not to be overturned except in the most extreme and strict cases.
Understood from this vantage point, the other judges could have called my bluff and laughed me out of town. They are already serving on the Constitutional Court and I am not even there.
21. The reason I relate the accounts of the newspaper accounts is to demonstrate that the choice of forum to which the judges decided to place this matter is not necessarily interested in the truth alone, but is capable of subjecting the public to fictitious assumptions devoid of the real truth in order to provoke a public debate or even provide a forum for those that have made a spot of calling for my resignation. What is seriously disturbing is the apparent misrepresentation by the Constitutional Court judges at least from newspaper accounts. We were initially told that all 11 judges decided to lodge a complaint alleging serious misconduct as well as criminal obstruction of justice as alleged in the press statement of the court. Justices Nkabinde and Jafta have since revealed that they had "on a number of occasions informed judges Langa and Moseneke that they did not intend to lodge a complaint or make a statement about the matter." Significantly, the two judges said they attended a meeting called by judges Langa and Moseneke on May 28 to discuss the basis of a complaint against me, where they again stressed they were not intending to lay a complaint. If that is so, then Chief Justice Langa and the rest of his colleagues committed impeachable gross misconduct they lied to the public and perpetuated a fraud upon us all by parading their press statement as a unanimous statement of the court when they knew that to be false. Worst of all, they improperly exerted improper influence upon their junior colleagues by ignoring their wishes and portraying them as complainants in a process from which they clearly disassociated themselves.
22. Impartiality requires that judges are not only free from influence of external forces, but also of one another. No judge however senior can dictate to his colleague how a decision should be arrived at or what their verdict must be.
Litigants or other subjects of judicial decisions have the inalienable right to not only accurate judicial decisions but impartiality that reflects and records even dissenting voices of minority judges. The dissenting voices in court decisions are typically recorded not just for posterity but for the benefit of the parties who are entitled to be informed about how the issues were decided.
Independence of judges means that no matter what the weight of public opinion is, no matter what the intellectual thought on particular issues, judges must bring their independent thinking to the issues before them. Despite what they hear in the newspapers, from their wives, husbands, friends children or anyone about an issue before them, judges must remain independent. It is therefore worrying that a conversation that I had with Judges Jafta and Nkabinde has brought panic and hysteria to such a well respected institution.
MY VERSION OF EVENTS
23. Had the Constitutional Court judges cared to consult me about these vicious allegations before publishing them I would have informed them of my version of events. I visited Justice Jafta in March and approximately three weeks before paying a courtesy visit to Justice Nkabinde. I will follow the sequence of my visits.
23.1. Justice Jafta has described our relationship correctly in paragraph 28 of Chief Justice Langa's statement. We know each other for many years, have been colleagues and friends. I first came to know Justice Jafta sometime in 1990 when I joined the Department of Public Law at the then University of Transkei as Professor and head of Department.
He was in my Department as a lecturer in constitutional law. I had heard that Justice Jafta was on an acting stint at the Constitutional Court and in fact I may have read it somewhere. I had a scheduled trip to Pretoria for my own private business. I called Justice Jafta a few days before my scheduled private business trip to tell him that I was going to be coming to Pretoria and suggested that we meet somewhere if he had time for coffee or something.
23.2. Since he was acting as a judge at the Constitutional Court we agreed that we would meet in his chambers at the Constitutional Court. I was also interested in encouraging him to apply for a permanent position at the Constitutional Court once a vacancy opened up and so was happy to see him in his chambers at the Court. After-all he sounded happy and we agreed that I would come to the see him at about 11h00 or 11h30 on that day. When I arrived at the Court and announced myself at reception, Justice Jafta was expecting me and I was ushered to his Chambers by someone I believe was his secretary. He received me very warmly and offered me a seat and coffee.
23.3. I was in Justice Jafta's Chambers for approximately 1hr 30 minutes.
We spoke about our families. In particular he asked me about my divorce that he had come to know about fairly recently. We spoke about our past experiences as academics at UNITRA, then as judges and heads of Court. He particularly asked me about my experience in Cape Town and issues of transformation and racism both in the bench and the bar. I asked about his experience as a judge at the SCA which he said had its own challenges but one that he was particularly enjoying. He also informed me that since his appointment to the SCA he had bought property in Bloemfontein and moved with his family to live there. Then I asked him about his experience acting as a Judge at the Constitutional Court. He told me that he was enjoying it and would consider availing himself for a permanent appointment if it occurred.
He said some of his colleagues had encouraged him to make himself available for such an appointment. I also encouraged him and said that I believed that he would be a great asset to the Constitutional Court and the development of the constitutional legal culture. I added that I would not mind joining the Constitutional Court in due course after serving the Cape Division for the past 14 years.
23.4. However, he made remarks about what he perceived as a weak management of the Court as a concern for him, in particular that it seemed that Justice O'Regan was running the Court and not necessarily Chief Justice Langa. I then remarked that the Court must be very busy since it was handling very important matters in particular the Zuma/Thint matter. The reason for my remark was that in one corner of Justice Jafta's Chambers were numerous files of the record clearly marked that any person walking into his chambers would be able to see. He agreed with me that there was a lot of work and that the Zuma/Thint case was a brain teaser demanding a focused application of the mind to the complex issues involved. I then added that I believed that the issue of privilege was a very concerning one and had to be dealt with properly. His answer was that the issues in the Zuma/Thint case would be decided correctly and added that the issue of privilege was very critical since it had the potential to alter very firm foundations on which the integrity of our legal system was based.
23.5. I expressed the view that I felt strongly, generally, about privilege and fair trial rights. His response was that he felt the same about the issue of privilege and fair trial rights but was not sure that everyone particularly his white colleagues shared the same thinking. My remark is correctly recorded, in that I did say that "sesithembele kinina" but it was never intended to convey to him that I meant a positive finding on the Zumal Thint matter. In the context of the conversation that we were having I expressed a view that the issue of privilege would receive satisfactory attention from the Court. That was my view expressed to a friend in a mutually engaged conversation. I would have expressed the same view even if it had not been the Zumal Thint matter which was involved. The issues in the Zuma/Thint matters were publicly argued and there has been an immense public commentary on the issues. I do not believe that expressing an opinion to an independent minded and competent judge as Justice Jafta would be interpreted as an attempt at influencing him to rule favourably. Such a position in my view is an insult and is demeaning to the Judge concerned. I consider that Justice Jafta is a very experienced Judge of undoubted legal skill and dexterity. His sense of independence is fierce; and, to my mind, he is very unlikely to have considered a conversation with a friend on any legal issues as an attempt to influence him in any manner whatsoever.
23.6. We also spoke about a range of issues and before I left, I once more encouraged him to avail himself for a position at the Constitutional Court if a vacancy occurred. We spoke about the fact that such an opportunity was bound to come since a number of judges would be taking retirement. We mentioned Judge Madala as one of them. I left Justice Jafta's chambers at about lunch time and asked him to show me the way to Justice Ngcobo's chambers to greet him since his chambers were not far from his. Judge Ngcobo is a former colleague who served as a Judge in Cape Town before taking up a position at the Constitutional Court. Justice Jafta accompanied me and we were cordial and friendly as we walked out of his chambers down the passage.
23.7. There was never a time when Justice Jafta for the 1 hour 30 minutes in his chambers suggested that I was acting inappropriately by expressing my views on the many issues that we casually covered. At no stage did Justice Jafta indicate any discomfort about my views expressed to him in the context of a conversation between mutual friends. At no stage did I ever suggest that Justice Jafta should ignore the evidence and rule in any direction in any matter before him. This dialogue between him and me was pleasant and reflected a fondness commonly associated with friends. Justice Jafta accompanied me to Justice Ngcobo's Chambers. He left me there and said that it had been good to see me as a parting shot. I deny that there was ever a time during our one and half hours conversation that it became necessary for Justice Jafta to tell me that I was interfering with his work as a judge. There was never a time that he acted or showed signs of being uncomfortable with our discussions, which covered a whole range of issues other than the legal issues in the Zuma/Thint matter. That explains why he waited for almost a month before speaking! Warning Judge Nkabinde about my alleged attempt to improperly influence him.
23.8. Justice Ngcobo invited me in and offered coffee. We chatted for about fifteen minutes and when I finished my cup of coffee I left. Justice Ngcobo walked me to my car. Outside Justice Ngcobo's chambers, it is where I met Justice Nkabinde who was with Justice Madala. They stopped to greet me and we exchanged pleasantries. It is then that I said to Judge Nkabinde that I had neither seen nor spoken to her in a long time and particularly after her appointment to the Constitutional Court. She said that she had not seen me too but she had read a lot about me in the papers. We laughed and I promised that I would pay her a visit the next time I had occasion to be at the Constitutional Court.
23.9. Justice Ngcobo and I walked to my car. He left me there and went back. In the car park I saw Deputy Chief Justice's car, and his driver was present. I walked to him and asked if the Deputy Chief Justice was around. The driver told me that he had gone to his chambers. I then left a message with the driver to convey to Deputy Chief Justice my greetings. A few days after that I received a call from the Deputy Chief Justice in which he gave me his private cell number at which he said I could reach him anytime. I must point out that the Deputy Chief Justice and I have, although rarely, had contact with each other, and in one or more of our conversations, he has expressed frustration about what he perceived as the poor leadership of Chief Justice Langa.
23.10. I left the Constitutional Court, carried out my private business in Pretoria, and went back the same day back to Cape Town. Since then I have never called Justice Jafta, but I have on at least two occasions spoken to Justice Ngcobo. There are no allegations that I sought to improperly influence Justice Ngcobo who by far is the most influential judge of the Constitutional Court. He commands a respectable portion of the Constitutional Court's intellectual and legal output and I certainly do not believe that he can be manipulated by anyone into taking a decision against conscience and the evidence.
24. About two or three weeks after I had met Justice Jafta I was scheduled to attend a meeting of the Local Organising Committee of the Commonwealth Magistrates and Judges Association. I was the Chairperson of the LOC given a mandate by Chief Justice Langa to convene a conference of Judges and Magistrates in Cape Town in October. There are four judges who are members of the LOC; myself as the Chairperson, Justice Seriti of the Pretoria Division, Justice Joe Rawulinga also in the Pretoria Division and Geraldine Schrider of the Witwatersrand Local Division. The Chief Justice's Chief Director Theo Sifuba coordinated the meeting held at the Constitutional Court.
There were some issues that required resolution relating to the funding of the conference and Mr. Sifuba would give us feedback on his efforts to secure funding from the Department and the office of the Chief Justice.
25. This meeting was going to attempt to unlock the red-tape in order to fast-track the logistical support required to host a successful conference. Advocate Sifuba was to host lunch at the Court for the members of the LOC prior to the meeting. I called Justice Nkabinde to inform her that I would be at the Court and was going to visit her for a few minutes before my meeting. This was simply a courtesy call and nothing more. Justice Nkabinde and I knew each other, and we share mutual friends. I met her about six years before her appointment to the Constitutional Court when she was still a trial court Judge.
We shared a mutual interest in labour law and had both served in the Labour Court, I at the Labour Appeal Court, and she at the Labour Court.
26. I arrived in Johannesburg a day earlier to meeting Justice Nkabinde because I had been invited to attend a function of the Aspirant Female Judges at Velmo Hotel near Pretoria. I had been invited to this function because I had been one of the examiners of these aspirant female judges. Justice Nkabinde was at the function and she gave the vote of thanks. I only spoke to Justice Nkabinde when she was leaving at which she introduced me to her husband who had accompanied her. We parted with her saying that she would see me the following day and indicated that she was available anytime before lunch since she had plans to travel to the North West that afternoon. She told me that she was on duty with the Chief Justice but would leave around lunch time.
27. I went to the Constitutional Court on the following day and arrived at approximately noon. I announced my arrival at reception and was ushered to her chambers. She welcomed me and offered me tea or fruits which were in a bowl on a table. Somewhere in her chambers are pictures of her family and we chatted about family. I confirm asking her about her family background including her Nkabinde surname. She told me about her previous marriage to a Nkabinde. In fact she said that she was a "return soldier" meaning that she was divorced. She told me that she retained the Nkabinde surname for the sake of her children who have that surname. I then told her about my divorces as well and we laughed when I said that I was also a "return soldier". The conversation was radiant and very jovial. Justice Nkabinde then asked me about my problems in the Cape. In particular she said "My brother, are all your problems in Cape Town over now?"
28. My response was that they had significantly become less than in the past. We laughed it off and then I asked her about her experience at the Constitutional Court to which she said that she was enjoying herself although she found it very demanding. She said that because the Constitutional Court was the final court it was important that they get things right first time and all the time. As with Justice Jafta, the record of the Zuma/Thint case occupies a significant space in her Chambers, and so, looking at the record, I remarked that it was probably one of the most demanding of the cases that the Court had dealt with, given its importance to the President of the ANC, Jacob Zuma and the ANC itself and the country in general since it was clear that Jacob Zuma was a likely contender for the Presidency of the country. I asked her whether judgment was due and she said that there was still a lot of work to be done.
She told me that she was busy doing a note on the issue of privileged communication between attorney and client. The impression created that there is something sinister around the casual discussion on the legal principle of privilege is incorrect. Even if she had not told me that she was writing a post hearing note on privilege, I am aware that privilege is one of the issues that was argued in the Zuma/Thint matter. There were extensive media coverage of the Scorpion raid on the offices of Zuma'a attorney, an intense media public debate on this issue which was demonstrated by the GCB and various bodies associated with it issuing press statements on it. It is pretentious to suggest that I specifically choose to discuss the issue of privilege because I had an inappropriate inside knowledge of workings of the Court.
29. Justice Nkabinde said nothing on the merits of the legal privilege as it relates to the Zuma matter, but she did say that it was an important legal issue in the case. I simply agreed with her and stated that I was concerned that the majority in the Supreme Court of Appeal did not attach much weight to the issue of privilege. The conversation was mutual and at no point did Justice Nkabinde indicate any discomfort about the many issues that we discussed including the issue of privilege. She told me that she was writing a note on privilege but never went into the details of what she was saying about it. I expressed my very strong views on it, but at no point did I think that she was uncomfortable about them to a point that she would consider filing a complaint of improper conduct. I do not believe that judges are easily influenced by casual conversations, and since all I knew about the case is what I had read mostly in the newspapers, my views could not have been crystallized enough to influence any judge of substance.
30. The allegation that I had a mandate has some how taken some significance in the complaint against me but was completely misunderstood. Here is where this name mandate comes from. Justice Nkabinde asked me what I was doing in the Constitutional Court. My response was that I had been given a mandate by Chief Justice Langa to chair the LOC for the Commonwealth conference on Judges and Magistrates to be held in Cape Town. I also told her that I would be seeing him for a short time before the meeting to report on some issues. I never said that I had any connections with the national intelligence or that some people would lose their jobs after elections in which Jacob Zuma would be President. Judges enjoy secure tenure and it would be foolishness to use such a blunt threat in such circumstances. Justice Nkabinde, unlike Justice Jafta who was on an acting appointment, is a permanent Judge of the Constitutional Court. But again it is unclear how my views expressed with no intimate knowledge of the case could influence a judge of the Constitutional Court.
31. What I found disconcerting is the allegation made on behalf of Justice Jafta that he informed Justice Nkabinde about my alleged improper conduct at his chamber before I visited her. Despite being allegedly warned by Justice Jafta, Justice Nkabinde never cancelled our scheduled meeting, never asked me not to come, but instead welcomed me and spoke with me for approximately 30-45 minutes. I cannot understand how the information that Justice Jafta is alleged to have conveyed to Justice Nkabinde would not have been sufficiently important for Justice Nkabinde to keep me out of her chambers or even meeting her for that matter. As I state above, my conversation with Justice Nkabinde was cordial and friendly up to the end. There was not a single indication from her that my remarks were inappropriate. The suggestion therefore that Justice Jafta warned Justice Nkabinde about my alleged attempts at influencing him is clearly a fabrication aimed at creating an atmosphere of a united Court on the inappropriate nature of the conversations that I had with these two judges.
32. ln conclusion;
32.1. It is clear from my narrative that my visits were known and agreed to in advance by Justices Jafta and Justice Nkabinde;
32.2. The judges that I visited welcomed me and never at any point indicate any discomfort about anything that we had discussed in their chambers for 1.30 minutes and 45 minutes respectively;
32.3. I also met Justice Ngcobo, a very senior member of the Court and nothing suggests that I ever attempted to influence him in any manner;
32.4. I had an opportunity to meet the Chief Justice for about ten minutes and nothing suggests that I attempted to influence him in any manner;
32.5. My conversations with Justices Nkabinde and Jafta were cordial, interactive until I left their chambers no one suggested that I had overstepped a mark of judicial decorum.
32.6. The views that I expressed were my views on issues of law and were never conveyed to seek to influence a judge to ignore the evidence and somehow manipulate the decisions in favour of a particular individual.
WHETHER THE JUDGES ACTIONS WERE DIRECTED AT PROTECTING THE CONSTITUTION AND THE ADMINISTRATION OF THE CONSTITUTIONAL COURT;
33. The role played by Deputy Chief Justice Moseneke in organizing the Court to formulate a complaint against me requires answers. Like me, Deputy Chief Justice Moseneke had not sat in the case, had not read the record, had not heard the evidence. How he also felt that he should be part of the complaint that I am attempting to influence the Court in the Zumal Thint matter is besides me. His role in getting all the judges together, meetings and numerous conversations with Judges Nkabinde and Jafta requires an explanation given that he was on long leave and I understand that Justice O'Regan was acting in his place. Given that he is widely publicised to have expressed views on the political events following the Polokwane ANC conference, it is very concerning that he should feature prominently in this manipulated show of judicial solidarity in the case involving Zuma/Thint. I do not understand how I am meant to have acted in a manner that would have had the effect of influencing Deputy Chief Justice Moseneke to decide in favour of Zuma/Thint when he was not even sitting as a judge. It is unfortunate that an impression may now well be created that his active involvement in this judicial show of strength has nothing to do with me having been attempting to influence the outcome in the case. What does Deputy Chief Justice Moseneke know about the Zuma/Thint case that he believes that sitting judges could be influenced to find positively for Zuma/Thint? Why, given the remarks he is alleged to have made at his 60th birthday party post Polokwane, is he so actively involved in trying to claim I was seeking to influence judges to find for Zuma, even going so far as to subvert the truth in him concealing to his colleagues, in order to show a veneer of judicial solidarity, that the so-called complainant judges had completely disavowed themselves of any intent to complain? Since he did not sit in the matter of Zuma/Thint, I am startled at the active role that he has played in ensuring that the complaint is structured in the manner in which it was.
34. As for Chief Justice Langa, he is the chairperson of the JSC and nothing explains why he provided no proper advice on how this matter could be better and fairly handled right from the beginning. Why were all the rules of fairness sacrificed by the very guardians of the Constitution in a bid to protect what they believed was a threat to the judiciary? I cannot understand why the judges believe that they are not bound to follow proper and fair procedures even to fight judicial intrusions that they consider gross. The Constitution provides for the protection of the judiciary but nowhere does it permit the violation of constitutional rights in order to protect the judiciary. Section 165(2) of the Constitution provides for courts that are "independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice." The Constitutional Court judges failed to appreciate the importance of this provision and to use the weight of the Court to reflect independence, the loyalty to the Constitution, fidelity to impartial application of the Constitution without fear, favour or prejudice. (Section 165(3))
35. AD PARAGRAPH 1
31.1. The statement issued by the Constitutional Court judges on 30 May 2008 and forwarded to me was not a complaint for purposes of a procedure under the JSC acting in terms of section 177. It was a media statement that referred to a complaint but was not on its own, a complaint. I have indicated how the Chief Justice informed me about the media statement. The publication of the media statement referring to a complaint that did not exist amounted to a misrepresentation of the facts to the public and a serious breach of my constitutional rights to dignity.
36. AD PARAGRAPH 2
36.1. The account of events in this paragraph is not entirely accurate. First the judges of the Constitutional Court did not make a complaint with the JSC on 30 May 2008. They issued a media statement which referred to a complaint with the JSC. When I asked for the complaint referred to in the media statement I was informed by Judge Howie for the JSC that "the contents of the complaint and the statement by the Constitutional Court judges" (emphasis added) are identical. .. " I attach the letter sent to my attorneys by Judge Howie marked "MJH2". My attorney requested a copy of the complaint and none was given to him because none existed at the time that a media statement was published by the Court. The perpetuation of the existence of a complaint existing separately from the media statement is clearly incorrect. The reason why the judges were given time to file a complaint was because they had not filed a complaint with the JSC.
36.2. I agree that the JSC provided the Court with an opportunity to file a complaint with it, but add that together with the request of the JSC to file a complaint was a letter filed on my instructions given to the two "complainant" judges.
36.3. I believe that it was a serious violation of the integrity of the judiciary by the judges of the Constitutional Court to issue a media statement condemning me in public without a complaint from anyone including the two judges who clearly had indicated that they are not willing to make any statements with the JSC. I do not believe the judges that I never spoke to have a basis for issuing such a vicious media statement without following procedures that are fair. Even if they believed their colleagues, it is incumbent upon them to display no partiality, a position in direct conflict with the Constitution. The position of partiality in this matter is astounding and is unacceptable. Even in the name of defending the Constitution, judges are expected to deal with a matter fairly, impartially, without fear or favour. The Constitution provides adequate safeguards for the protection of the Courts and the judiciary in general. Nothing in it provides a justification for this kind of unprecedented show of judicial solidarity in which there is no impartiality and fairness, all necessary for a fair process - sacrificed in pursuit of allegations of fictitious judicial transgressions. The conduct of the judges of the Constitutional Court notionally confers on all the judges in the country without more the standing to associate with the Constitutional Court complaint on the basis that a transgression in one court by a judge is a transgression to others and that only on the basis of the complaint by the judges of the highest court. In fact nothing stops anyone from lodging a complaint against me on the basis of the statements by the Judges of the Constitutional Court. Such a possibility is premised on the fact that the Judges of the Constitutional Court themselves issued a public statement and filed an alleged complaint to the JSC on the basis of what they heard from two of their colleagues.
37 . AD PARAGRAPH 3
37.1. I believe that the position taken in this paragraph is inconsistent with the statements issued by Justices Jafta and Nkabinde, in particular that they are not willing to file a complaint. I do not understand how it can be asserted in this paragraph that judges are pursing a complaint, at a time when it has already been conveyed to the public by Justices Jafta and Nkabinde that they do not wish to complain.
38. AD PARAGRAPH 4
38.1. I will deal with the response in a different response.
39. AD PARAGRAPH 5
39.1. Save to point that I have never been associated with this matter I note the allegations in this paragraph. It is very telling that the judges saw it fit to mention the names of the cases in the media statement. I believe that a statement to the effect that I had attempted to influence the Court in one of its matters pending before the Constitutional Court would have been sufficient, without necessarily mentioning the cases in point. In addition I have never read a single document in the matter, other than what I have read in the newspapers or heard argument in the matter, written any judgment in any aspect of the matter in the case. How without knowledge of the case, it can be alleged that I attempted to influence the judges is difficult to understand.
40. AD PARAGRAPHS 6 AND 7
40.1. Until this paragraph, I did not know the composition of the bench that presided in the Zuma cases. Until I spoke to Justices Jafta and Nkabinde on different occasions I had no prior knowledge that they had presided in those cases. I was aware from media reports that the Deputy Chief Justice was on leave at the time that the cases were dealt with in Court. Other than that I had no particular interest in the matter except that a decision by the Court on the search and seizure warrants and the issue of privilege would greatly assist my division that is facing similar cases.
41. AD PARAGRAPH 8
41.1. My knowledge of the Zuma case was based on judgments that had been handed down by the High Court and the Supreme Court of Appeal. I have never read the record nor heard any evidence on which I can possibly seek to influence any well deserving judge of the Constitutional Court. I knew nothing of the case to have an influential conversation with a judge who had read the record, heard argument and enjoyed the opportunity to think through the issues involved. My interest in the outcome of the case is based on the fact that its outcome would have a significant bearing on the cases that I am aware of in my division involving the constitutionality of search and seizure warrants under similar provisions of the NPA Act.
42. AD PARAGRAPH 9
42.1. I deny that I required an invitation to visit Judge Jafta in his Chamber.
In any event, Judge Jafta was at liberty to refuse to see me, but as he states we are friends who share a common intellectual and legal background. I have described my relationship with Judge Jafta.
42.2. I deny that I require an invitation to discuss with anyone any legal principle which has been debated in any Court. I have dealt with the circumstances under which the Zuma case became part of our mutual conversation. At no point did I show any unusual interest in the matter other than the interest of any legal person.
42.3. I deny that I sought to improperly persuade Judge Jafta to decide the cases of Zuma in a manner favourable to Zuma. I have described the circumstances of our mutual conversation.
43. AD PARAGRAPH 10
43.1. I have described how I came to meet Judge Nkabinde and I deny that there was anything improper about meeting her. As shown above, Justice Nkabinde and I share mutual friends and I really wished to meet her while I was attending a meeting at the Constitutional Court.
43.2. I deny that I require an invitation to have a conversation on any matter with any judge of this country. I have dealt with the circumstances of my conversation with Justice Nkabinde and do not believe that they convey an intention to corrupt the process of justice.
43.3. I deny that during this conversation with Justice Nkabinde, I sought to influence her in any manner in any direction.
44. AD PARAGRAPHS 11 and 12
44.1. I have no knowledge of the facts alleged in this paragraph, save to deny that my visits and conversations to Justices Jafta and Nkabinde were inappropriate at all. The impression created in these paragraphs that I approached these judges is very suggestive and is aimed at creating an atmosphere of wrong-doing.
45. AD PARAGRAPH 13
45.1. Save to deny that I approached Justice Nkabinde, we had a prior agreement to meet. I have dealt with the circumstances of the meeting and emphasize that at all times, my conversation with Justice Nkabinde was cordial and welcoming and mutual.
46. AD PARAGRAPH 14
46.1. I recall mentioning a mandate to Justice Nkabinde, but deny that it was to influence her in any matter. She had asked me why I was at the Court, and I told her that I had a mandate from the Chief (Chief Justice I meant) to organize a conference of judges and magistrates. In any event, any case before the Constitutional Court must be decided correctly. The Constitutional Court does not have the luxury of having its decisions reviewed or appealed against. They must get a matter right and I see no conduct unbecoming of a judge in saying so. Clearly in the context explained above, I said that I believe that the Zuma matter had to be correctly decided and even expressed views of my own on the legal issue of privilege which Justice Nkabinde had told me she was drafting a note on.
46.2. I could never have known that Justice Nkabinde was herself writing a draft note on privilege if she had not told me. The conversation was a cordial one as between brother and sister and I never sought to improperly influence her.
47. AD PARAGRAPH 15
47.1. In my conversation with Justice Nkabinde, I deny mentioning the national intelligence. I have dealt with the circumstances of my conversation with Justice Nkabinde. The allegations that I said that some people would lose their jobs is laughable. It is unclear what jobs by who that would be lost. If it is the suggestion that I threatened both judges Nkabinde and Jafta that in itself would be an impossible task for me since the two judges are relatively young and enjoy secure tenure of office.
47.2. I recall suggesting to her that Judge Jafta was a very competent judge who would bring immense wisdom to the activities of the Constitutional Court and that he should make himself available when the opportunity presented itself. I believe that Jafta would be a very valuable person to have at the Constitutional Court because I have known his work as an academic, a head of Court and a Supreme Court of Appeal judge. He is more than competent. It is not just an opinion that I have and believe. As for me I recall that in our conversation that I mentioned to her that I had been in Cape Town for almost 14 years and that I would not refuse an opportunity to serve my country as a judge of the Constitutional Court, where the focus is the constitution. I do not believe that a conversation in that direction would be inappropriate and unbecoming of a judge.
48. AD PARAGRAPHS 16 and 17
48.1. I have no knowledge of what Justice Mokgoro advised Justice Nkabinde but deny that there was any basis for such advice. It seems that she sought advice about a month after our conversation. If she felt strongly about our conversation I am at loss as to why she did not complain to the Chief Justice Langa the same day that I am alleged to have attempted to influence her to rule in favour of Zuma. I can not understand how Justice Nkabinde can wait for almost a month after we had met together to then support a complaint of impropriety. Judges have no ethical obligation to report matters that they discuss in chambers with anyone, but if they have cause to do so, they are obliged to file a complaint in the correct channels.
48.2. It is very disturbing that a conversation conducted in chambers with other judges is now a judicial transgression which can legitimately trigger the process under section 177 of the Constitution. I believe that Judges should be independent and impartial and obliged to pursue their duties without fear or favor. I believe that our judges have all these qualities, but between them, there must be an intellectual interaction that can only fortify the sense of independence. I do not think a judge should be over sensitive and shy away from hearing a robust view of a colleague but still maintain the independence of thought and intellect. To elevate judicial interaction of this nature to misconduct for impeachment purposes will weaken our judiciary. It will deprive the judges the benefit of intellectual challenge of colleagues and in the long run create a very lonely and irritable bench. Judges must interact between themselves, across divisions and levels of Court as friends, colleagues and judges without every such interaction being regarded as a potential act of judicial misconduct.
49. AD PARAGRAPH 18
49.1. I do not believe that Justice Mokgoro's reaction was justified, particularly in light of the position taken by her colleague Justices Nkabinde and Jafta in their statements referred to in paragraph 2 of the statement of the Chief Justice.
50. AD PARAGRAPH 19
50.1. I have no knowledge of what Justice O'Regan did.
51. AD PARAGRAPH 20
51.1. It is very instructive that the Chief Justice advised Justice Nkabinde to make a written statement, but was content to encourage the entire court to take a public position on the basis of a one-sided version of events. That is something I can not understand, that none of the judges felt that I needed an opportunity to tell my story before I am crucified in public. It is also instructive that Justice Nkabinde was unprepared to furnish a written statement regarding the matter but that on her unexplained and untested ipse dixit, for her colleagues to side with her in a complaint of this nature. I should have been given a hearing before other judges could be encouraged to take any side. I believe that on my explanation, there would not have been any concerns about an inappropriate conversation.
52. AD PARAGRAPH 21
52.1. The meetings held to persuade Justice Nkabinde and Jafta to file a statement are very revealing of a campaign to victimize me and add fuel to the chorus of groups seeking my removal from office. It is unprecedented, and is an abuse of the judicial office to achieve ends that are not consistent with the office of judgeship. I have no knowledge of the alleged meetings but consider them to be inappropriate in light of the fact that judges do not require this solidarity in order to protect the Constitution impartially, without fear or favour or prejudice.
53. AD PARAGRAPH 22
53.1. I note the allegations but deny that a basis existed for such hysterical reactions by the judges of the highest court of our country.
54. AD PARAGRAPH 23
54.1. The account of Judge Nkabinde and Jafta has already been dealt with and save to the extent that it is contended that I sought to improperly influence them, I deny that.
55. AD PARAGRAPH 24
55.1. Once more I might have in the course of our conversation mentioned that the cases were important for Zuma and the country, but I also mentioned that the cases were important in that they would clarify once and for all specific legal principles like privilege and the guidelines for determining the constitutional validity of search and seizure warrants. I do not believe that there can be a dispute the cases are in fact important cases and have widely been publicized and been part of a really intense public debate both in print and electronic media. I do not believe that my comments are inappropriate between two judges having a conversation.
55.2. I do not know what Judge Nkabinde said to Chief Justice Langa but do recall that during our conversation, she specifically mentioned to me that she was preparing a note on privilege. The conversation never went further than generally, that the issue of privilege was an important aspect. There was no discussion for example about the merits or demerits of the issue of privilege in so far as the Zuma case went. I cannot believe that she was puzzled about this conversation since it was a cordial and general conversation covering a range of issue both legal and social. The insinuation that I had prior knowledge that Judge Nkabinde was writing a note on privilege is ludicrous and should really be a desperate and deliberate attempt to see something wrong with my conduct where none exists.
56. AD PARAGRAPH 25
56.1. I have dealt with these hearsay allegations. I do not know where the reference to the national intelligence comes from but it is an irresponsible accusation devoid of any truth.
56.2. I can not betray the trust of our conversation that resulted in me remarking that there is no case against Mr. Zuma. I can state categorically that I am not the one that has access to the record of the case; that sat and heard argument; that has had the opportunity to apply his mind to the issues of the case. The suggestion that I intuitively and prophetically felt that there was no case against Mr. Zuma is far fetched and does not correctly record my conversation with Justice Nkabinde. I have dealt with how Justice Nkabinde and I ended up talking about my experience as a Judge in Cape Town.
My experience as a judge in the Western Cape is very trying. I work in a hostile environment in which every effort has been made to forestall my initiatives on the transformation of the judiciary and legal practice.
56.3. There was not a time during my conversation with Justice Nkabinde that she referred to other undisclosed claims as hogwash. My conversation as far as I am concerned was cordial and civil. There was not a single time when it became necessary for Judge Nkabinde to state to me that I was not entitled to discuss the cases. Our conversation was not all about the Zuma case. When the case was mentioned in the context that I have explained above, the conversation was brief and I was conscious of my place in so far as her work at the Court was concerned. Justice Nkabinde was at liberty to speak about anything with me, politics, family or law. As far as the issue of privilege is concerned she told me about her role, that she was writing a posthearing note and it is an important aspect of the case.
57. AD PARAGRAPH 26
57.1. I have no knowledge of what Justice Nkabinde stated to Chief Justice and Deputy Chief Justice. As far as I am concerned, I never paid Justice Nkabinde a visit for purposes of attempting to influence her in any court decision.
58. AD PARAGRAPH 27
58.1. Such a position would be inconsistent with the whole tenor and circumstances of my conversation with Justice Nkabinde in her chambers. I believe that there was nothing untoward in the conversation that could make her feel uncomfortable and I am comforted in that by the position that she has publicly taken that there was no basis for her to lodge a complaint with the JSC for a conversation held between colleagues.
59. AD PARAGRAPH 28
59.1. I have no knowledge of the meeting referred to in this paragraph. I can not make a sensible comment on it since it is not the words of Justice Jafta. I however know that Justice Jafta is a friend and when I visited him it was never an awkward moment. I am rather surprised that he is reported to have thought that I had communicated with him in a manner that was improper. I have dealt with the circumstances of our conversation and like him will not breach a confidence, save to the extent that I have dealt with it.
60. AD PARAGRAPH 29
60.1. I have dealt with my visit and conversation with Justice Jafta. Like him I will hold in confidence the detail of what we spoke about in his Chambers save to the extent that I have dealt with above. I do not even believe that it was inappropriate for me to say that Zuma's cases have to be looked at properly and that "sesithembele kinina". The Constitutional Court is anyone's last hope in any litigation and in the context of our conversation such a comment can never be inappropriate. In the broader conversation on the Zuma matter I do not believe that it is inappropriate in the context of explained to have made those comments. The comments can never be designed to influence a judge to act contrary to conscience and the dictates of fairness. Simply put, such comments as alleged could never be intended to influence a judge. The fact of the matter is that the Zuma matter is a very significant matter that has enjoyed in the public a fairly extensive commentary and coverage. It is a matter that has impacted the political environment and it is deception to behave as though I am the first person in South Africa to comment about the significance of the Zuma matters. When I made comments about it, it was in the context described above and at no point was there any intention to influence judges of the Constitutional Court.
61. AD PARAGRAPH 30
61.1. My woes in the Cape Town division are public knowledge and it was in the context of sharing our respective experiences that my comments were made. I have faced numerous vindictive attempts to tarnish my image as a judge. I have endured immense public pressure from numerous people who have made it a calling on their lives to ensure that I am removed from the bench or I offer voluntary resignation. I am aware that my sin is not the alleged transgressions, but my commitment to a transformed judiciary and legal fraternity. Similarly, when we mentioned in probably a few sentences the importance of the Zuma case to him personally and his family, I expressed the view that he must similarly be under tremendous pressure. In the context of two colleagues having a casual conversation, I can not understand why my comments are made to look like an attempt to influence a judge from acting independently in a matter.
62. AD PARAGRAPH 31 and 32
62.1. I have dealt with my conversations with Justice Jafta and do not believe that he was justified to warn Justice Nkabinde about my visit to her. In fact such a warning does not seem to have triggered any reaction from Justice Nkabinde. Despite this alleged warning, I was warmly welcomed by Justice Nkabinde and we had a good conversation together in which amongst many other issues that we spoke about, including law. It is just unbelievable, indeed inconceivable, that Judge Jafta would warn Judge Nkabinde about my alleged misconduct and for Judge Nkabinde to simply ignore such a warning, and still receive me without even as much as saying if it was true that I had allegedly made certain improper remarks to Judge Jafta, and was intending to repeat same with her, I had better not even begin to do so. It is mindboggling to say the least, but is as outlandish a scenario as the conduct of the judges who on the 12h June 2008 send a statement to the JSC, and subsequently confirm the Chief Justice's
affidavit which is inconsistent with the contents of the position they took in their statement of the 1ih June 2008, as I have humbly submitted elsewhere in this statement.
63. AD PARAGRAPH 33
63.1. The position reflected in this paragraph of what Judge Jafta told the Chief Justice and his Deputy Chief Justice is consistent with the fact that there was no basis for a complaint at all. I am comforted by the fact that Judges Jafta and Nkabinde were bold enough, in the middle of what appears to be a flurry of fairly cohesive meetings to persuade them to act contrary to their conscience, to issue their joint statement of 12 June 2008. I deny that Judge Jafta would have regarded my conversation with him as inappropriate and that there was any basis to reject my so called "approach".
64. AD PARAGRAPH 34
64.1. Such a position is unlikely in light of the statement that the two judges made to the JSC on 12 June 2008. I disagree to the extent that it is alleged that they considered my alleged approach as improper. I deny that I ever approached them. I had a conversation with Judges of a
South African Court, not persons who do not understand what the independence of a judge means; we spoke about social and legal issues in the context that I have described above.
65. AD PARAGRAPH 35 and 36
65.1. I have no knowledge of the meetings referred to in this paragraph, nor do I know what was discussed. I will request the minutes of these meetings in which these allegations were discussed. What is very telling in this paragraph is the fact that despite the fact that Judges Nkabinde and Jafta had requested that Chief Justice Langa conveys to judges attending the 'conference their position on the matter, that does not seem to have been done. On 29 May 2008, when this meeting was called, the Chief Justice and Deputy Chief Justice did not convey to the judges the sentiments conveyed to them by Judges Nkabinde and Jafta. Instead, at the meeting which is dealt with in paragraph 36, the following issues are recorded;
65.1.1. Chief Justice and Deputy Chief Justice recounted the essence of what they had been told at the meeting of 28 May 2008;65.1.2. They asked judges not to subject Jafta AJ and Nkabinde J to questioning given the distressing circumstances in which they were;
65.1.3. Chief Justice and Deputy Chief Justice then reported that in their view the conduct of Hlophe JP constitutes a serious attempt to influence the decision of the Court in the Zuma/Thint matters.
65.2. I have dealt with the inadequacies of the meeting. First the allegation that the two judges were distressed is really surprising given what the two judges had conveyed to the Chief Justice and his Deputy in numerous meetings inclUding that of the 28th May 2008. Despite the numerous meetings and conversations to cajole the two judges to file a complaint, it is clear that they were not prepared to do so. In the thick of intense meetings and conversations with them, they- to the surprise of other judges- filed the statement of 12 June 2008.
66. AD PARAGRAPH 37
66.1. I will request that I be afforded the minutes of all these meetings in order to understand the meaning of "a full discussion" that followed. A full discussion could not have taken place without the other judges of that Court(assuming all of them were in attendance, something the minutes would clarify as well), being allowed to ask relevant questions about the story conveyed to them by the Chief Justice and Deputy Chief Justice. Clearly the story was not conveyed to the judges by the two judges concerned and in a normal situation, a full discussion would include asking questions. Ideally, it would have been also a meeting in which I should have been given an opportunity to tell my side of the story, whereafter, if needs be, a lodgment of a complaint in the proper forum would have ensued.
66.2. I am shocked to learn that it could ever be decided by the judges that if I refuted the allegations, the two judges would have to give oral evidence to the JSC. Such a decision was totally outrageous. I cannot reconcile it with the fact that the two judges had just been shielded from being questioned by their own colleagues and now would be forced to make oral submissions at the JSC where the prospects of cross-examination loomed large. It is most disturbing that the judges went to that extent in plotting to make sure that I would be impeached, - clearly pre-empting the process of the JSC, which may exclude the hearing of oral evidence.
66.3. Having decided to lodge a complaint with the JSC, I cannot understand why the Constitutional Court judges decided to make a media spectacle of the issues that were meant to serve before the JSC, even before there was a statement that would detail the nature of the complaint intended to be lodged. The reasons given for issuing a media statement are most unsatisfactory. Moreover, as I have complained, the process followed violated fair process, my constitutional rights and undermined the judiciary.
67. AD PARAGRAPHS 38 - 58
67.1. I have dealt with the allegations contained in these paragraphs.
68.1 humbly submit that it is not competent for a Court, let alone that Court, to decide to file a complaint. It also seems improper, to me, that the stature of the Constitutional Court should be misused to lend credibility to a complaint that now seems to have, for lack of a more appropriate word, been 'extorted' from two unwilling judges. Whilst I can understand that individual judges can lodge a complaint with the JSC, I have a suspicion about what the motive is when judges purport to be a Court that, as a Court, lodges a complaint, particularly in the circumstances of this case. It seems to me, with the greatest respect to my colleagues on the Bench in that Court, that this was a gross abuse of the Court and, in the manner in which it was done, a wanton disregard for what that august Court represents.
69. The Constitutional Court is one of the most important institutions in the historical development of this country. It should be untainted by the vagaries of the pre-constitutional experiences of the judiciary. It is the only court in democratic South Africa that represents the legal traditions of a constitutional democratic state and has the highly demanding responsibility of developing a new legal culture. Transforming the court into a complainant Court has the hallmarks of precipitating a constitutional crisis such as this country has never had, nor is likely ever to have. It undermines the integrity of the highest Court in the land, and threatens the independence of the judiciary. The prospect of a future in which the judges of the Constitutional Court can presume to use the power of the Court to deal with untested allegations through the media, in a misguided show of judicial solidarity is an unfortunate development. It seems to me to be conduct inconsistent with what is expected of the Court in terms of sections 165(2), (5), 167, 168, 169, 171, 172, 173 and 174 of the Constitution.
70. Judges come and go, will come and go, but the Constitutional Court is meant to remain a durable judicial institution and a heritage to the generations coming. It does not appear to me to be the appropriate thing that judges should feel that they are entitled to complain in its name, and to create an impression that the Court, qua Court, is the complainant. It must remain untainted by what judges choose to do in their personal capacities.
71. On the facts that I have given in this response, no law or principle of judicial conduct was violated. Judges are independent and must guard that independence jealously. It is disturbing that a casual conversation with a fellow judge on the law may even be remotely conceived by the two top judges in the country, the Chief Justice and his Deputy, as conduct that should call for my impeachment. I know no jurisdiction with such a rule and do not believe that South Africa has such a rule. Judges must talk about the law; they must be encouraged amongst themselves to debate the law. That is the only way to enhance the quality of legal decisions and the development of our legal culture. Judges must be encouraged to talk to other people, for example when Deputy Chief Justice gave a talk to religious leaders on the issue of gay and lesbian marriages. Judges must be able to debate issues with academics and interact with various stakeholders of society. The most important attribute of judicial power is the independence of judges to apply their minds to the issues and decide matters impartially, without fear, favour or prejudice. It is the independence of the judges that must be protected and it would be a sad and undesirable development for the judges in South Africa when views expressed to colleagues in their chambers, by other colleagues, are reduced to impeachable conduct. My conversations with the two judges were far from the standard required to qualify as improper conduct.
72. The conduct of the Constitutional judges is a dangerous precedent, and undermines the attributes of independent judges. I do not believe that an independent judge should be afraid to hear views of other colleagues or even of friends, academics -even a spouse - a child, a social activist or the media commentaries.
73.1 have struggled with my conscience on the issues involving my colleagues and am concerned about the image that this unprecedented conduct by the judges of the Constitutional Court has given of the judiciary in South Africa. I have surveyed the international jurisdictions and have found no such precedent. I have attempted to reflect over and over again on my conversations with Judges Nkabinde and Jafta and do not accept that they were inappropriate. None of them at the relevant time told me that my conversations with them were inappropriate- which they had a duty to tell me.
I do not concede that on any known international standard of judicial ethic, I flouted the sacred space of judicial integrity and independence. I cannot
accept that the judges of the Constitutional Court can use the Court to formulate and pursue a case of judicial misconduct as a Court.
74. The role played by judges who were on leave and had not themselves sat in the Zuma/Thint matter is most worrying. How I am alleged to have attempted to influence the thinking of judges who were clearly not involved in the case of Zuma/Thint is surprising to say the least. Particularly, the Deputy Chief Justice's role in marshalling the other Court judges to sing from the same song book, so to speak, is surprising.
75.1 never met Judges Nkabinde and Jafta on any mandate from anyone for the purpose of persuading them to rule favourably for Zuma. I never attempted to persuade them on any issue in the case. I know very little of the case to have attempted to persuade anyone to rule in any manner in the case.
76. Finally, I wish to state that I am a professional and have carried out my duties diligently and in accordance with my conscience and duty in terms of the Constitution. I do not take my office lightly and I regard my responsibility to my country most sacred. I am aware that public pressure has been used consistently and vindictively against me-- from a retired Constitutional Court Judge, the General Council of the Bar of South Africa, the Cape Bar Council, the law professors of the University of Cape Town and Stellenbosh, individual practitioners of the Cape Bar and the Pretoria Bar---all of this aimed at forcing my resignation. The conduct against me by the Constitutional Court judges is most severe because from them I expected that my rights were secure and protected- from them I expected a measure of decorum and decency associated with the Court that they represent. I have stayed the course and continue to do so until I have served my full term as a judge of my country. I will not bow to this obviously orchestrated public pressure, and will continue to hold my independence as a judge sacred and important for the life of the judiciary. I realise that the conduct of the Constitutional Court judges has provided further space for unprincipled attacks on my office and person, but I am comforted that most of these attacks are as a consequence of my unflinching stand on issues of transformation on the Bench and the legal profession, particularly my stand against racism. I also steadfastly stand for the development of a sound legal culture that is consistent with the values of the Constitution.
77.1 am very concerned that the country's Constitutional Court appears, in my respectful view, to have been abused for motives that have very little to do with protecting the independence of the Courts and judges as claimed by Chief Justice Langa. In my respectful submission, the abuse and manipulation of our judicial institutions to mount fictitious battles constitutes an interference with proper judicial processes that is so untenable that it must be stopped if this country must enjoy the benefits of the intellectual and institutional resources with which it is blessed, particularly in the ranks of the judiciary, whose independence is geared to equip judges wherewithal to develop a sound legal culture, without fear, favour or prejudice.
78.1 therefore humbly implore this Commission to dismiss these allegations with the severest degree of censure from this body that they deserve.
JUDGE PRESIDENT HLOPHE
To: The Hon Chairperson of the Judicial Service Commission
Judicial Service Commission
JOINT STATEMENT BY JUSTICES NKABINDE AND JAFTA
With reference to the letter from the Judicial Service Commission dated 6 June 2008 addressed to the Constitutional Court requesting statements by each of the "complainant Judges' we wish to state as follows:
1. For the record, we wish to state th at we have not lodged a complaint and do not intend to lodge one and, consequently, we are not "complainant Judges".
2. With regard to the request by the Judicial Service Commission for statements from us we wish to state that we are prepared to make only this joint statement, and no other.
3. We place on record that, from the moment the matter about Judge President Hlophe's visits was reported by O'Regan ADCJ to the Deputy Chief Justice Moseneke, we have on a number of occasions informed Chief Justice Langa and Deputy Chief Justice Moseneke that we were not intending to lodge a complaint and neither we were willing to make statements about the matter.
4. We further record that on 28 May 2008, we attended a meeting called by Chief Justice Langa and Deputy Chief Justice Moseneke. We had occasion to discuss the issue that formed the subject of the complaint against Judge President Hlophe. We again made it clear to them that we were not intending to lay a complaint against Judge President Hlophe and neither did we intend making any statement about the matter. Reasons for such decisions were given to them.
5. Save for what is stated in the preceding paragraph, we are not at liberty to disclose the content of our discussion with the Chief Justice and Deputy Chief Justice, but wish to state that should they wish to disclose such content to the Judicial Service Commission, we have no objection thereto.
Date: 12 June 2008
CC: Deputy Chief Justice Moseneke