STATEMENT IN RESPONSE TO COMPLAINT TO THE JUDICIAL SERVICE COMMISSION BY HLOPHE JP MADE ON 10 JUNE 2008
I, the undersigned,
PIUS NKONZO LANGA
make the following statement:
1. I am the Chief Justice of South Africa. This statement is made in my capacity as the head of the Constitutional Court and on behalf of all my colleagues at the Constitutional Court. The statement is a response to the complaint laid by Hlophe JP on 10 June 2008 [see here].
2. On 10 June 2006, Hlophe JP lodged a complaint against the judges of the Constitutional Court. The JSC forwarded this complaint to the Acting Deputy Chief Justice on 11 June 2008 and requested a response.
3. The complaint by Hlophe JP is set out at some length. In essence, it turns on the media statement issued by the judges of the Constitutional Court on 30 May 2008 ("the media statement") which publicly announced that a complaint by the judges of the Constitutional Court against Hlophe JP had been referred to the JSC. The media statement recorded, inter alia, that the basis of the complaint was that Hlophe JP had approached some of the judges of the Constitutional Court in an improper attempt to influence the Constitutional pending judgment in one or more cases.
4. The essence of the complaint by Hllophe JP is that the judges of the Constitutional Court acted in a procedurally unfair manner by issuing the media statement. It is contended that in so acting, the judges of the Constitutional Court violated Hlophe JPs constitutional rights. There appears to be a related issue, namely, that the complaint against Hlophe JP ought to have been confined to the judges who were improperly approached and that the remaining judges should not have "prejudged the issue or associated themselves in ‘solidarity with the complaints of the individual judges". I have dealt with the reasons why the complaint emanated from all the judges of the Constitutional Court in my statement providing details of the complaint made by the judges of the Constitutional Court against Hlophe JP. The relevant paragraphs of that statement are paragraphs 53- 57. I do not repeat them here but they should be considered as if they had been incorporated here.
5. The decision to issue a media statement at the time of referring the complaint to the JSC was necessitated by the following factors:
5.1. The integrity of the adjudication process and the very independence of the Constitutional Court had been threatened by Hlophe JPs improper approach to Nkabinde J and Jafta AJ.
5.2 Nkabinde J and Jafta AJ properly discharged their duty by disclosing what had occurred to Langa CJ and Moseneke DCJ. Nkabinde J also disclosed to Mokgoro J what had happened as appears from my Statement containing the details of the complaint against Hlophe JP.
5.3 The other judges were shocked and distressed by the reports. None of the judges had experienced such a serious affront to the integrity of the judicial process in their careers as judges and the mailer was accordingly viewed in the gravest possible light. In the absence of ay possible reason to suggest that our colleagues would manufacture reports of such a serious nature, we accepted the accuracy and veracity of what they had been told and continue to do so.
5.4. The judges felt that it was imperative that the matter be referred to the JSC which is the constitutionally appointed body to deal with complaints of this nature.
5.5. With a view to the constitutional values of openness and accountability, it was considered that the independence of the Constitutional Court and its deliberative processes would be best protected by a public disclosure of what occurred. It was felt that it was particularly important to re-assure the public that the judges of the court are committed to protecting the integrity of the judicial process and will not, even when circumstances may be difficult or hostile, shrink from that commitment.
5.6. The measures taken by the judges of the Constitutional Court were regarded as being in defence of the integrity and independence of the Constitutional Court and the administration of justice in South Africa as a whole. The purpose was not to fortify a complaint against Hlophe JP. The judges of the Court consider that the proper constitutional body to adjudicate the complaint is the JSC and that is why they have referred the matter to the JSC. It should be added that the judges are committed to assisting the JSC to carry out this task.
5.7. In circumstances where the independence of the Constitutional Court had been threatened and the integrity of the administration of justice in South Africa generally, it was considered imperative and appropriate that this be publicly disclosed. Should the facts have emerged at a later stage there would have been a serious risk that the litigants involved in the relevant cases and the general public would have entertained misgivings about the outcome and the manner in which the decisions were reached. It was especially important that the litigants and the general public were informed of the attempt and that the Constitutional Court had not succumbed to it.
5.8. As mentioned above, Hlophe JP was informed of the complaint to be lodged against him on Friday 30 May 2008, and a copy of the complaint was thereafter on the same day faxed to him at an address furnished by him. Thereafter and again on the same day, the complaint was lodged with the JSC. The media statement in question was issued shortly after the complaint was sent to the JSC.
6. The media statement was issued in the same way as all statements emanating from the Constitutional Court are issued. This is done electronically by the Registrar of the Constitutional Court. Since its inception, the Constitutional Court has made use of the internet in conveying information about the Court, its judgments, directions and media releases. The addressees to whom the media statement was sent subscribe to this service and automatically received the media statement.
7. In asserting that the judges of the Court were not permitted to disclose the fact of the complaint to the press, Hlophe JP appears first to underestimate the gravity of the complaint the judges of the Court make. An attempt to influence judges of the highest court to determine a case in a particular manner is a threat to the institution of the judiciary, one of the pillars of our constitutional democracy. Moreover, his complaint appears to confuse the functions of a complainant (in this case, the judges of the Constitutional Court) with the functions of the JSC. It is the latter's task to determine whether or not the complaint is well founded. The judges of the Constitutional Court were entitled to and did accept what had been told to them by their colleagues, Nkabinde J and Jafta AJ. This is not a pre-judgment of the complaint, nor could it be because that is a function reserved for the JSC.
8. Hlophe JP's procedural right to fairness will be respected and protected by the JSC. We do not understand it to be suggested by Hlophe JP that the JSC will be improperly influenced by the issue of the media statement.
9. The contention that the issue of the media statement is in conflict with "established international jurisprudence" is not borne out by the complaint. The various principles and international instruments referred to by Hlophe JP do not address a situation such as the present where there has been an improper attempt to influence the highest court in pending matters.
10. The circumstances giving rise to the complaint against Hlophe JP were unprecedented and exceptional. There are no pre-ordained procedural requirements in such circumstances.
17 June 2008