COMPLAINT BY JUDGE PRESIDENT OF THE CAPE OF GOOD HOPE PROVINCIAL DIVISION MJ HLOPHE JP AGAINST THE JUDGES OF THE CONSTITUTIONAL COURT
1. On 29 May 2006, judges of the Constitutional Court issued a public press statement, styled "Statement by judges of the Constitutional Court" and forwarded same by facsimile to me two minutes before the media at 12h00 started reporting on it. The alleged "complaint" was conveyed to me in the following manner. Sometime before noon on Friday 30 May 2008, I received a call from the Chief Justice. We exchanged pleasantries as is customary and then he informed me that there was a complaint by the Constitutional Court judges. He asked for my private fax and then faxed a copy of the alleged "complaint". To my surprise he faxed me a press release with allegations of misconduct referred to in paragraph 1. That was about 1 1h58. At noon, I started receiving calls from members of the media about the statement. That is how I got to know that judges of the Constitutional Court judges were seeking to activate a procedure under section 177 of the Constitution for my removal as a judge.
2. This media statement of the Constitutional Court judges it seems was then forwarded by the senior registrar of the Constitutional Court by e-mail to a number of persons who appear from the e-mail addresses to be associated with different institutions. I can for example recognize persons working or associated with institutions like the South African Law Commission, Department of Justice, Juta Publishers, National Prosecution Authority, Department of Provincial and Local Government, South African Human Rights Commission, former researchers of the Constitutional Court and practicing advocates associated with different Bars. I do not know on what basis the media statement which purported to double up as a complaint of gross misconduct against me to the Judicial Services Commission was forwarded by the Registrar of the Constitutional Court to the persons referred to in the e-mails below, but consider such conduct to be a reckless disregard of my constitutional rights to be treated fairly and with dignity. The publication of the statement to the specific individuals requires an explanation since the statement has been published in the media. The association of the persons listed in footnote 1 to the Court clearly requires an explanation.
3. According to the media statement, it is alleged by all judges of the Constitutional Court that I approached some judges of its Court "in an improper attempt to influence this Court's pending judgment in one or more eases...", namely the matters of Thint (Pty) Ltd v National Director of Public Prosecutions and Others (CCT 89/07), JG Zuma and Another v National Director of Public Prosecutions and Others (CCI 91/07), Thint Holdings (South Africa) (Pty Ltd and Another v National Director of Public Prosecutions (CCI 90/07) and JG Zuma v National Director of Public Prosecutions (CCT 92/07).
1. The procedure adopted to convey the complaint against [sic] by the Judges of the Constitutional Court is very unfair and highly prejudicial not just to me as a judge but to the integrity of the judiciary as a whole. It is a practice clearly disallowed under the United Nations Article 17 of the Basic Principles on the Independence of the Judiciary which states that the examination of the complaint "...at its initial state shall be kept confidential unless otherwise requested by the Judge." [See here - Ed] In so doing, these individuals deliberately ignored established international jurisprudence and our own constitution. They specifically violated the United Nations Basic Principles on the Independence of the Judiciary, adopted by the General Assembly in 1985, which provide in relevant part that:
1.1. "Principle 1: The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
1.2. Principle 2: The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason." Most importantly, they violated Article 17 of the Basic Principles which states that the examination of a complaint of judicial misconduct "...at its initial stage shall be kept confidential unless otherwise requested by the judge." The Honorable Judge President Hlophe has never at any time waived his right to confidentiality.
1.3. In addition, the action of these judges is not in keeping with the African Charter on Human and Peoples' Rights [see here], which was ratified by South Africa, and which provides that State Parties "shall have the duty to guarantee the independence of the Courts" (Article 26).
1.4. They violated the basic rule that all investigations into the alleged misconduct of a sitting judge be done in a fair and impartial manner and in accordance with the International Covenant on Civil and Political Rights, which was ratified by South Africa. In particular, Article 14 (1) of the ICCPR provides that: "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law...."
4. Furthermore, they violated the UN Basic Principles on the Independence of the Judiciary which require that any charges or complaints "made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure" (Principle 17), and that ‘all disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct" (Principle 19). These judges grossly violated norms observed in international jurisprudence. Professor Martin L Friedland, in his book A Place Apart (1995), a comprehensive study of the Canadian federal and provincial judiciary, specifically points out the vital importance of confidentiality in the judicial discipline process: "The visibility of the process is also a matter that requires careful consideration. At the early stages of the process, there has to be a large measure of confidentiality. An allegation of impropriety against a judge can have serious consequences in terms of the credibility of the judge. Thus, it would be very unfair for the Council itself to publicize unfounded complaints that have not gone on to a hearing... No jurisdiction that I am aware of gives the public access to the investigation stage or routinely reveals the judge's identity at that stage. The new American Bar Association procedures maintain confidentiality at the investigation stage. The same seems to be true in Canada for complaints against lawyers. And in the criminal process generally, police investigations are also normally kept confidential until a charge is laid or some other action is taken.(emphasis added)"
5. The conduct of the judges of the Constitutional Court undermined the integrity of the judiciary by issuing a media statement in which they condemned me for gross judicial misconduct without following the fair and proper procedures that would have protected me as a sitting judge from unfair public ridicule and criticism. I found myself facing an untenable situation of having to consider responding to the media statement of the Court in a public effort to clear my name, conduct which I consider inimical to the basic tenants of fair procedure which the judges of the Constitutional Court had in numerous cases courageously upheld. The procedure followed by the judges of the Constitutional Court violated a plethora of legal principles recognized in our Constitution, and drastically eroded the public's acceptance of the judiciary as the guardian of the law.
6. On receipt of the media statement, I contacted, through my attorney of record the Judicial Services Commission, in order to obtain the details of the complaint. My attorney was forwarded with a response in which the media statement was attached as the complaint by the Judges lodged against me. I was required to respond to the alleged complaint referred to in the media statement before the Judicial Services Commission met on 6 June 2008. I was unable to respond to the alleged complaint and in subsequent communication with the Judicial Services Commission I indicated my inability to respond to a media statement of the Constitutional Court judges. I attach the letter written on my behalf by my attorney in which I made the requests for the particulars of the alleged complaint. My position that there was no formal complaint was vindicated in a media statement issued by the Judicial Services Commission which is attached herewith as "JP2". It is shocking for me that the JSC now seeks to obtain a complaint from two of the judges on which the statement was issued to the public. My right to procedural fairness has been grossly violated and it is improper for the JSC to seek to regularize the process without acknowledging the damaging effect which is triggered by the statement. The process for the removal of a judge is a very serious one and must never be activated likely [sic].
7. The Constitution and basic tenets of natural justice demands that justice should not only be done but seen to be done, Where judges seek the removal of another judge, there is even a greater demand that the procedure adopted is fair. The conduct of the judges subjected me to unnecessary and unjustifiably extreme pressure of the nature that has never been seen on any sitting judge. I have had to face numerous calls from the Bar Council of South Africa, the Cape Bar Council, Law Society of South Africa and opposition political parties for my immediate release from duty on the basis of the media statement made and forwarded to the JSC. I attach the media statements issued by the Law Society of South Africa, Cape Bar Council and the Bar Council of South Africa as "JP3", I fear that as a result of the public statement issued by the judges of the Constitutional Court, I will face more vicious and sustained calls from persons who have in the past called for my resignation on previous matters that the Judicial Services Commission has dealt with. The most vicious of the public attacks calling for my resignation came from a former justice of the Constitutional Court, Justice Kriegler [see here], senior members of Bars in Cape Town and Pretoria. I ignored these calls since I do not believe that a judge under the protection of the Constitution should not likely [sic] resign and particularly on the basis of public pressure. My sentiments were aptly captured in an article that appeared in the Advocate, a Cape Bar Council publication, by two advocates of the Cape Bar in which the public calls for my resignation was decently discussed as "JP4". I refused to resign from my office since I considered the public calls from even a former judge of the Constitutional Court unwisely vindictive, ill-advised and unprincipled but consistent with a brand of democratic culture that is protected in our Constitution. These are private citizens who nurture very strong views about judicial ethics arid morality and I was not afraid to be criticized by them on the subject. I was comforted by the public knowledge of what these individuals represent in our bid to transform the judiciary in particular and the society in general, into an egalitarian one, in which ordinary people matter in the general scheme of things. What I am unable to accept as legitimate conduct is the conduct of serving judges of the Constitutional Court in vilifying me in public and calling for my removal in a brave and public show of solidarity. That conduct was designed to tarnish my reputation as a judge in the most vile and malicious manner. It hurt me incredibly that judges failed to have regard to my reputation as a judge.
8. No matter what some of the judges of the Constitutional Court think about me as a person, I am a human being; a citizen of South Africa called to serve my country as a Judge President of the Cape of Good Hope Provincial Division and I am entitled to be treated with dignity. I am entitled to the protection that the laws of South Africa offer to all South African [sic]. The conduct of the judges of the Constitutional Court was unfair and highly prejudicial to me. I do not believe that the judges of the Constitutional Court should have issued a public statement condemning me for gross misconduct without following a fair process. By issuing the statement, the judges of the Constitutional Court violated my right to fair process, dignity and equal treatment. Such conduct is inconsistent with the Constitution, which the judges are enjoined to protect with [sic] fear or favour. I have been denied any dignity or the pleasure of serving my country as a judge-President because of the manner in which the judges of the Constitutional Court have treated me. The Constitutional Court judges have subjected [sic] to the ridicule of the public and amongst my most uncaring colleagues handed them ammunition to pursue an unforgiving crusade of seeing to it that I am removed from office. Such conduct is inconsistent with the position of udges and undermines in the most reckless manner the independence of the judiciary.
9. The filing of a serious complaint is itself a process that must comply with the dictates of fairness. It can not be made the subject of a media spectacle since it has very critical implications for the judiciary, the judges of the Constitutional Court and me. The statement issued by the Court carried a rare vindictiveness that I had never associated with judges of the highest Court skilled in approaching controversial issues with dexterity and decorum. I may face impeachment and become the first judge in South Africa to be removed from office for gross misconduct. Such a prospect has very serious implications for our judiciary and the public confidence in it. The prospect must have weighed heavily on the judges of the Court who are seeking to activate a process that may result in my removal from office. The issuing of the media statement condemned me in public and significantly damaged my reputation as a judge. Such conduct is inconsistent with the office of the judge of the Constitutional Court whose public duty is to secure the rights of all the citizens of this country, friend or foe, to uphold the Constitution in a manner that is fearless but impartial and without favour.
10. Not too long it was the honourable Chief Justice Langa who warned against recklessness in criticizing the Supreme Court of Appeal's incorrect attribution of a "generally corrupt relationship" comment to the trial judge in the Schabir Shaik judgment, Hilary Squares in the very cases that I am alleged to have attempted to interfere with. The Chief Justice in that matter correctly asserted the correct and fair procedure that any complaint would be required to follow. He stated that the public was entitled to lodge a complaint with the JSC. He went on to say "...there is a heavier responsibility on people in authority and/or leadership to desist from indulging in free-for-all of public recriminations and vilification of the judiciary. Conduct of that sort undermines the Constitution and can (weaken) both the judiciary and our democracy." I am unable to associate the conduct of the judges of the Constitutional Court with this statement from the Chief Justice. I am concerned that the media statement of the judges of the Constitutional Court was issued without any regard to the serious implications for the process that would be used to deal with the substance of the complaint.
11. Since the complaint as reflected in the statement is that I approached some judges, I believe that those complaining judges are certainly prohibited by judicial ethics from contaminating the rest of the court with untested and unproven allegations as facts. The judges that I did not approach, on the statement itself, should not have prejudged me or associated themselves in a rare show of judicial solidarity, with the complaints until the matter had been dealt with and finalized by the Judicial Services Commission. I agree with the comments made in an open letter to the Chief Justice Langa by Paul Ngobeni that appeared in the Business Day that;
"Judicial ethics would certainly preclude such a complaining judge from arranging that all 11 judges, in a well-orchestrated show of solidarity, issue statements adopting the said complaint as a complaint of the entire court. Judicial ethics would certainly prohibit that aggrieved judge from further deliberations on the Hlophe matter because of the apparent and palpable conflict of interests."
12. The position in my view is correct and consistent with the precepts of natural justice and certainly the Constitution. In that same article Paul Ngobeni further stated that:
"by adopting the said complaint as a consolidated "c/ass action" complaint by all judges of the Constitutional Court (including those who were not contacted by Hlophe) you have effectively put judicial imprimatur on a one-sided complaint process and made findings you felt emboldened to publicise in the press, notwithstanding that the accused had not been afforded a due-process hearing. The Hlophe case cried out for extreme caution aimed at ensuring the impartiality of the remaining uncontaminated pool of jurists. Sadly, your court threw these hallowed constitutional principles overboard and unleashed media frenzy at Hlophe's expense. In egregious violation of the principles of natural justice, Hlophe was denied an opportunity to respond - he was just tarred and feathered in the press as a corrupt judge. In what court would Hlophe challenge the decision on procedural or constitutional grounds, given that the entire court has transformed itself into a complainant?
13. The Court collectively failed to consider the issues of judicial misconduct from the perspective of the Constitution and was motivated in its overzealousness to collectively assert judicial independence for motives which are not based on the Constitution. The conduct was deeply vindictive and grossly inconsistent with any procedural fairness requirements that it can not but be concluded that the motives in issuing the statement were motivated by un-desirable political consideration. The public altar is a very cruel one and there are no rules which can possible [sic] moderate the punishment. The failure to uphold the basic tenants of the Constitution in dealing with me is deeply worrying. How is the public in particular the litigants that I am alleged to have spoken on behalf of to trust the work of the judiciary if judges can sacrifice the Constitution to vilify a colleague?
14. 1 hope that I am not correct that the litigants who are subject of the pending decision that I am alleged to have improperly sought to influence can continue to trust the judges to adjudicate the matters before them in a manner that is consistent with the judicial office, fairly and impartially without fear or favour. The manner that they have treated me must concern the public and the litigants because it violates the core principles of the judicial functions. From the perspective of an uninformed member of the public, or a litigant awaiting the Court's decision it would appear that the judges of the Court can act contrary to the Constitution and vilify a person in public without recourse to due process. Once more, on what basis did the Court fail to treat me with dignity and decorum?
15. I have carefully considered the implications of this complaint to the Judicial Services Commission, I have done with a very heavy heart since the Constitutional Court is the only Court that represents the success of our democratic experiment. Its contribution to the peaceful transition and transformation of our legal culture has been commendable. I have respected and continue to do so, the past and present justices of the Constitutional Court and have been proud of the contribution that they have made to the development and management of our legal system. The Constitutional Court system has been a formidable institution in the socio-political and economic transition of our country. I have been privileged to be associated with scholarly judges, fearless in their defence of constitutional rights and committed to the change that has characterized the constitutional democratic period. Many of the judges at the Constitutional Court have served in my division and their judicial record remains today unblemished. I have made this complaint with the full appreciation that nothing will be a significant threat to the independence of the judiciary than judges complaining against each other. We have to be fair to each other and to accord mutual respect and decorum.
16. We have, as judges an enormous responsibility to this country and the countries around us to uphold the values of judicial independence which includes that judges can address concerns that they have about each other without undermining the office which we hold. This is not a matter that I could not simply leave to being the defendant judge. I have in the past, as many of the judges, will know endures [sic] the indignity of being condemned by all sorts of people. I have exercised restraint and refused to bow to public pressure. I believe that I must never as a judge bow to the pressure imposed on my office through the media, the vicious public condemnation from a retired judge of the Constitutional, the professors of UCT and Stellenbosch Law school, senior lawyers and Bar associations. Our Constitution prescribes a procedure that is designed to balance the interests of the public to hold judges accountable and judicial independence. The strands should never be violated because they are the keys to preserving the integrity of the judiciary.
17. The media statement made by the judges of the Constitutional Court can not be taken lightly because in them is the genesis to a very serious process of removing me from the position that I have held for the almost 14 years. I therefore, with sadness am forced to file the following complaint against the Constitutional Court judges;
17.1. The judges of the Constitutional Court have undermined the Constitution by making a public statement in which they seek to activate a procedure for my removal for alleged improper conduct before properly filing a complaint with the Judicial Services Commission in terms of section 177 of the Constitution;
17.2. The judges of the Constitutional Court have violated my right to dignity (section 10 of the Constitution) right to privacy (section 14 of the Constitution) right to equality (section 9 of the Constitution), right to procedural fairness (section 33 of the Constitution); right to access courts (section 34 of the Constitution);
17.3. The conduct of the judges of the Constitutional Court failed to adopt a procedure that has upholds [sic] the democratic values of human dignity, equality and freedom; section 7(1) of the Constitution;
17.4. The conduct of the judges of the Constitutional Court failed to respect, protect, promote and fulfil the rights in the Bill of Rights;
17.5. The judges of the Constitutional Court failed to adopt a procedure that is fair in that even as I file this complaint I do not have a complaint from the judges of the Constitutional Court;
JUDGE PRESIDENT MJ HLOPHE
This is text version of Judge John Hlophe's written complaint against the Judges of the Constitutional Court. It was submitted by Hlophe's Lawyer L G Nuku to the Judicial Services Commission on June 10 2008. Note: This is an electronic transcription, and as such there may be errors in the text not present in the original.