IN THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
HELD IN JOHANNESBURG
CASE NO:
In the matter between
HLOPHE, MANDLAKAYISE JOHN - Applicant
and
JUDICIAL SERVICE COMMISSION - First Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT - Second Respondent
JUDGES OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA - Third Respondents
KROON AJ - Fourth Respondent
JAFTA AJ Fifth Respondent
APPLICANT'S REPLYING AFFIDAVIT
I, the undersigned,
MANDLAKAYISE JOHN HLOPHE
do hereby make an oath and say that:
A Introduction
1 I am the applicant in this matter and I deposed to the main founding affidavit on 8 May 2009 (see here) and the supplementary affidavit on 11 May 2009 (see here).
2 The facts to which I depose herein are within my own personal knowledge, save where it is otherwise stated or the context indicates otherwise, and are, to the best of my knowledge and belief, both true and correct.
3 I have read the affidavits of
3.1 LEX MPATI, the President of the Supreme Court of Appeal and Acting Chairperson of the Judicial Service Commission ("the JSC"), which was unsigned and un-commissioned;
3.2 GEORGE BIZOS, a member of the Judicial Service Commission, which appears to have been signed on 12 May 2009 but not commissioned. It is annexed as "LM8" to the affidavit of the JSC's Acting Chairperson, LEX MPATI; and
3.3 PIUS NKONZO LANGA, the Chief Justice of South Africa, deposed to on 12 May 2009.
4 To the extent that the averments made in these affidavits differ from those I made in my founding and supplementary affidavits, they are denied.
5 It pains me to say at the outset that
5.1 the factual matrix presented by the Acting Chairperson of the JSC in his affidavit is inaccurate and appears to have been prepared by someone who was not intimately involved with the process. This is clear particularly in light of the version put up to sustain the proposition that the first time I complained about the procedure adopted by the JSC was in the founding affidavit filed in support of this application. On the facts to which I deposed in the founding affidavit, this averment is demonstrably untrue;
5.2 the serious allegation by the Acting Chairperson that I, the Judge President of the High Court of South Africa, may have misled this Court (even unwittingly) by withholding material facts that go to the very heart of urgency, is an unfortunate broadside that is with respect a characteristic feature of the disdain with which the JSC seems to regard me. The allegation is incorrect;
5.3 the undisguised attempt at preventing me from asserting my rights, by judges of the Constitutional Court against whom I seek no relief and who have no business opposing a relief that is not directed against them, is with respect inappropriate;
5.4 in any event, since no relief of any kind is sought against the judges, it is with respect churlish to insist that I seek leave to institute these proceedings against them. In truth, I have instituted no proceedings against them. These proceedings are not against them at all. They have simply been given notice of the application and I have not even required that they file opposing papers. This is a clear demonstration that their interest is no more than one of curiosity. My request in terms of section 5 of the Constitutional Court Complementary Act, 13 of 1995, was no more that an exercise ex abudanti cautela;
5.5 the judges' opposition, coming as it does with a holus bolus incorporation of the entire SCA record in these proceedings will serve only to burden this Court's record unnecessarily and mulct the state in unnecessary costs;
5.6 the so-called "background facts ... from the SCA record as a whole" put up by the Chief Justice ostensibly "on behalf of the third to fifth respondents" are with respect self-serving and elliptic;
5.7 in the absence of written authority or confirmation, I deny that the Chief Justice's spirited opposition to relief not directed or sought against him or any of the other judges involved in the JSC process has the support of all the other judges, particularly Justices Nkabinde and Jafta. Justices Nkabinde and Jafta have at all material times during the JSC proceedings been represented by a separate team of counsel. The reasons for this, I respectfully submit, have to do with a difference of approach beginning with their joint statement of 12 June 2008 (just 3 court days before the submission by the Chief Justice of the statement of 17 June 2008 seeking to support the skeletal allegations of judicial misconduct made on 30 May 2008 against me) in which they disavow any wish to lodge a complaint against me until the Deputy Chief Justice held "a series of meetings" with them until they signed statements supporting the Chief Justice's statement of 17 June 2008. That joint statement is annexed as "A" hereto;
5.8 the Chief Justice ought with respect to pedal one canoe. He cannot at once proclaim not to be opposing the relief founded on the JSC's bias against me, while making submissions that have precisely the same effect. His spirited opposition to the relief that I seek against the JSC on grounds of bias is fundamentally not rationally connected with his submission that he respects my "right to a fair hearing before the JSC". This is self-evidently so because if he genuinely respects my right to a fair hearing at the JSC, then he can logically and in good conscience not oppose my prayer founded on the JSC's bias against me, as he submits he does not. But then his opposition on any other basis, when he does not quibble with my avowed reasonable apprehension of bias by the JSC has the effect that he wants me nonetheless to endure an unfair process that is vitiated by the adjudicator's bias against me. It is impermissible to plead in this fashion because the two approaches are mutually exclusive and cannot both stand at the same time. For that reason, an application will be made at the hearing of this matter for the entire affidavit of the Chief justice to be struck out on the ground that it is vague and embarrassing;
5.9 in any event, the entire affidavit of the Chief Justice purports to give a factual account of what has transpired in this unfortunate chapter of our judicial history and does nothing more. For the rest, it repeats the averments made by the Acting Chairperson of the JSC in his affidavit. It adds nothing as regards the issues that I raise against the JSC. This is not surprising because the relief sought is far removed from the judges and focuses solely on the JSC. For that reason, what the judges have to say in these proceedings is irrelevant and ought to be struck out. At the hearing this matter, application will be made in this regard.
6 In this reply I deal with the following issues that form the basis of the JSC's attack and, to a limited extent, that of the judges of the Constitutional Court as at the date of submission of the allegations against me to the JSC:
6.1 Urgency;
6.2 The lawfulness of the JSC proceedings;
6.3 Is the interim relief premature;
6.4 The Court's discretion; and
6.5 Costs
7 To the extent that I do not deal expressly with the averments made in the affidavits under reply, then I ask that any allegations and submissions made therein that are inconsistent with what I say in the founding affidavit, the supplementary affidavit and this replying affidavit should be considered as having been denied by me.
8 I deal with the second respondent's answering affidavit separately in a separate affidavit.
B Urgency
9 The JSC contends that this application is not urgent. For that proposition the Acting Chairperson accuses me of not disclosing the material facts to this Court and then proceeds to do so inaccurately.
10 Concisely put, the urgency arose on 7 May 2008 when the JSC had not responded to a request to grant an undertaking that it would not proceed with its deliberations until the Courts have ruled on the current application. A copy of the letter from my attorneys of record requesting an undertaking is annexed hereto as "A". JSC's letter of reply refusing to make such undertaking subsequently came on 8 May 2009 and is "LM1" to the JSC's opposing affidavit. The context in which that request came to be made was this:
10.1 On 24 April 2009 the JSC invited me to indicate "by no later than 8 May 2009" whether I would make submissions and testify before it.
10.2 My attorneys of record responded on 6 May 2009, and on my instructions, rejecting the invitation on the grounds that the process was unlawful.
10.3 I reasonably believed (and I still do) that once they had received my response, the JSC would then proceed to deliberate on what they had heard from the "uncontested" evidence of the judges of the Constitutional Court and make a recommendation in terms of its rules and the Constitution.
10.4 Any recommendation the JSC may make in these circumstances would be considerably prejudicial to me.
10.5 Urgency in these circumstances seems to me, with respect, self-evident.
11 I wish to address the accusation that I created the wrong impression in my account of the facts relating to the issue of urgency. The Acting Chairperson says I create "a wrong impression" that I only sought one postponement. But no wrong impression was created. The facts around my medical indisposition and consequential request for a postponement are borne out by the record and they are these:
The hearing of 1 April 2009
11.1 On 1 April 2009, which was the first day scheduled for the hearing of oral evidence, my counsel on my instructions sought a postponement sine die. A medical certificate was advanced in support of that request. The certificate, issued on 30 March 2009, recorded that I had severe influenza and would be unfit to work until and including 3 April 2009.
11.2 My counsel cautioned the JSC not to place too great a store on the date of 3 April 2009 because no one knows what complications could arise. He submitted that just as the possibility existed that I would have recovered by 3 April 2009, another possibility was that I would not.
11.3 A similar sentiment was later expressed by Justice President Ngoepe in relation to the second medical certificate of 3 April 2009 by another medical doctor. He cautioned against a mathematical approach of counting the number of days during which a medical certificate says one would be indisposed and, on the basis of that, make a decision that one would thus be fit to work the day following the last day of indisposition. Justice Ngoepe said:
"And also, Mr Marcus, I don't know whether if a doctor says this person is - rather, Mr Madlanga, if this person - if the doctor says this person will not be well within the next three to four days, whether we should stick to mathematical calculations and say two plus one is three plus four so this is the fourth day, fullstop, when we are dealing with a condition of a human being which is just a body anyway which can speak any language it wants to speak irrespective of the mathematical calculations a doctor may make. So the matter is not as easy as all that."
11.4 The JSC nevertheless postponed the matter until Saturday 4 April 2009 at 9:30 a.m. , "based on the medical certificate provided by or on behalf of Judge President Hlophe".
11.5 In the proceedings of 1 April 2009 my counsel requested from the JSC
11.5.1 a formal ruling as regards the reasons for dismissing the concerns raised in my attorneys' letter of 27 March 2009 as regards bias and other procedural issues;
11.5.2 a copy of the record of proceedings and minutes of the JSC meeting of 28 March 2009 at which the decision to dismiss my concerns was taken;
11.5.3 reasons for the voluntary recusal of the Minister of Justice from the proceedings.
11.6 It was also indicated to the JSC in unequivocal terms that this information was required with a view to considering whether or not to launch a review application.
11.7 The JSC then adjourned and came back with handwritten responses to my counsel's request. The response was read into the record by the Acting Chairperson.
11.8 He then said my legal representatives
"will get the reasons or responses that we have compiled. If you want to bring an application to interdict the Committee from proceeding on Saturday [4 April 2009], so be it"
11.9 Commissioner Moerane then suggested that my legal representatives be given a copy of the handwritten reasons "in order to facilitate and expedite any decision that the Judge President wishes to make" and that "the rest can be typed out tomorrow".
11.10 The decision referred to was that of whether or not, depending on the reasons advanced by the JSC, I should launch a review application. But "the rest" of the responses foreshadowed both by the Acting Chairperson in his ruling, and by Commissioner Moerane, did not come "tomorrow" as was suggested by Commissioner Moerane. They came 3 weeks later on 24 April 2009.
11.11 Upon considering them I came to the conclusion that the written responses advanced by the JSC were not rationally connected to the information before it and the reason given for it by the JSC. I then instructed my attorneys of record to instruct counsel to prepare application papers.
11.12 Counsel was not available until 4, 5 and 7 May 2009 to prepare application papers and my other counsel was engaged in another matter in the Supreme Court of Appeal which had been set down for argument on 4 May 2009.
The hearing of 4 April 2009
11.13 On 4 April 2009 a sworn affidavit, coupled with a medical certificate from a different doctor, was advanced in support of a further request for the matter to be postponed for ten days. I submit that this did not constitute a new postponement application because what had been granted on 1 April 2009 was more an adjournment than a postponement. Legal argument in this regard will be advanced at the appropriate stage.
11.14 The second certificate, attached to an affidavit, was dated 3 April 2009. It gave credence to what my counsel had earlier unwittingly presaged about complications that might set in following the last day of severe influenza indisposition as identified by the first medical doctor. This time I was diagnosed with "Acute Sino-Bronchitis" and instructed to
"remain indoors for next 3 - 4 days and not travel or venture out of [my] home surrounds until [my] symptoms have completely abated"
11.15 The medical doctor also recommended that I
"Not consult with legal representatives until early next week"
11.16 Notwithstanding Justice President Ngoepe's caution against application of "mathematical calculations ... when we are dealing with a condition of a human being", the JSC nevertheless "postponed" the matter from Saturday 4 April 2009 until Tuesday 7 April 2009. The fourth day of my medical confinement according to the medical certificate fell on Tuesday 7 April 2009, the very day to which the JSC had "postponed" the matter.
11.17 Despite an invitation by my counsel to do so, the JSC did not even seek to satisfy itself that I would be well enough to attend the proceedings on Tuesday 7 April 2009. It did not satisfy itself that my "symptoms have completely abated". Instead, based on considerations to do with the saving of resources, it adjourned the matter to less than 3 days hence. In this vein, the Acting Chairperson said
"I was told by the secretariat, because you know, the question of resources is also a consideration, wasting of resources, and this place has been secured at huge expense. But I'm made to understand that if we were to proceed in April still, and finalise the matter in April, the Commission might be saved some resources."
11.18 In giving the JSC's reasons for refusing a 10 day postponement but granting an adjournment of just over 2 days, the Acting Chairperson again cited a "wastage of resources" as a factor. The first 2 reasons were
"1. Notice of the hearing to be held from 1 to 8 April 2009 was given to the parties on 17 April 2009. The parties accepted these dates [this is not correct as regards the applicant] and the necessary complicated and expensive arrangements were made for the hearing to take place at the appointed time.
2. Serious prejudice and inconvenience and wastage of resources would result if the postponement were granted to dates beyond the period assigned for the hearing."
(my emphasis)
11.19 The fact that the JSC placed disproportionate weight on considerations of the Commission's resources and relatively scant regard to my health, and consequentially the interests of justice, is demonstrated by the fact that both lead counsel for the judges were amenable to the matter being postponed beyond the period upon which the JSC was insisting. In this regard Madlanga SC said:
"We would, if in the end, the Committee decides to adjourn the proceedings, that it be an adjournment to a later date than April."
Marcus SC said in turn:
"Justice Mpati, for what it's worth, and I have indicated this to my learned friend, Mr Pincus, I will make myself available at any time from now, up to and including Friday 24th of April."
11.20 It was thus not beyond the realms of possibility that the parties before the JSC could have reached an agreement as regards a postponement to dates later than that to which the JSC forcibly postponed the matter on considerations of its financial resources and evidently without a care for considerations of justice. In his reasons for postponing the matter for 2 days, the Acting Chairperson with respect does not give an accurate account of the judges' counsels' availability as articulated by them. This means he did not consider the issue at all. Clearly, this was a relevant consideration particularly in relation to what is in the interests of justice. In these circumstances, it is difficult to imagine how the JSC could have "balanced the rights and interests of the Judge President against those of the other Justices involved who wish the hearing to proceed".
11.21 That the Acting Chairperson was on 4 April 2009 still referring to "influenza" in his reasons for postponing the matter to 7 April 2009, even though the medical statement submitted to him talked of "Acute Sino-Bronchitis" is yet another indication that the decision was not rationally connected to the information given to him.
11.22 So, the matter was adjourned from the afternoon of Saturday 4 April 2009 until 09h00 on Tuesday 7 April 2009. This, notwithstanding the medical certificate recording that
11.22.1 I would be indisposed until Tuesday 7 April 2009;
11.22.2 I should not consult with my legal representatives until Tuesday 7 April 2009;
11.22.3 I should not travel or venture out of my home surrounds until the symptoms of Acute Sino-Bronchitis have "completely abated";
and notwithstanding that
11.22.4 the JSC had not once disputed that I had Acute Sino-Bronchitis (despite Commissioner Bizos once ridiculing my condition and referring to it as "flu" to which my counsel took exception). In fact, the Acting Chairperson strongly disputed a remark advanced by my counsel that the JSC seemed to be questioning the fact that I was medically indisposed;
11.22.5 Pincus SC had not completely disavowed my ill-health as a ground for seeking a postponement for 10 days. After all, why would he submit an affidavit with a medical certificate from a medical doctor if my ill-health were completely irrelevant; and
11.22.6 the JSC did not make a finding that my ill-health, on account of Pincus SC's submissions, was an irrelevant factor.
The hearing of 7 April 2009
11.23 Not surprisingly in light of the contents of the medical certificate and medical doctor's affidavit to which it was attached, on 7 April 2009 my counsel relied on that certificate and affidavit in making a request for a postponement of the matter sine die. This was no new and separate request because that which had been sought on 1 April 2009 and 4 April 2009 was never granted. What was granted were brief adjournments of less than 3 ordinary days each. The difference was that reliance was placed on one medical certificate for the one request and on another for the other request. Clearly, no regard was had to either evidence when those adjournments were made.
11.24 No regard was had to the medical evidence when the request made on 7 April 2009 was refused either. The JSC simply pushed ahead when I could not, on doctor's medical advice which the JSC did not and could not gainsay, attend the proceedings. I have already set out the basis for this and my counsel advanced what is, I respectfully submit, an unassailable argument based on rule 5.13 of the JSC Rules whose application the Acting Chairperson now astonishingly says is discretionary. There is nothing in them that suggests that they are.
11.25 The net effect of what the JSC did in light of the medical evidence before it was this. It required me to present myself at the hearing at 09h00 on Tuesday 7 April 2009, some 3 hours after I, on a mathematical approach cautioned against by Justice President Ngoepe, would for the first time have been able to consult with my legal representatives. This was patently unreasonable.
11.26 The Acting Chairperson's suggestion, in his reasons for the decision to refuse the request for a postponement on 7 April 2009, that not medical certificate had been proffered is totally inconsistent with the facts. The certificate dated 3 April 2009 by Doctor Waynik that had been presented on 4 April 2009 was still relevant and had been expressly relied upon. The period covered by that certificate was still extant as that period ended, mathematically, on Tuesday 7 April 2009 at 06h00, 3 hours before I was due to be some 2000km away in Johannesburg.
12 I respectfully submit that these facts, which are borne out by the record, demonstrate clearly that the suggestion that I withheld material facts that are necessary to sustain an urgent application is not correct.
C The lawfulness of the JSC proceedings
13 The JSC says the declarator sought in prayer 2 of PART A of the Notice of Motion that the proceedings of the JSC are unlawful is incompetent. For this proposition it advances what seems like a res judicata argument. The argument is with respect not legally sustainable. Submissions in this regard will be made on my behalf at the appropriate time.
14 Under the same rubric (that the relief in prayer 2 of PART A is incompetent) the JSC also disputes that it was, by reason of the Minister's absence, improperly constituted. For this proposition the Acting Chairperson says I am mistaken in my interpretation of the relevant provisions of the Constitution. I submit that the provisions are clear both in their import and spirit. Legal submissions in this regard will be advanced on my behalf at the appropriate time.
15 In this vein the Acting Chairperson then makes submissions in relation to the seeking of reasons from the former Minister as regards his recusal, and participation of the new Minister in the proceedings. These submissions are irrelevant. The issue is one of legality. The JSC was not properly constituted in the absence of the Minister or his designated alternate, and so could not properly make the decisions that it made on 7 April 2009. Whether or not his recusal in the circumstances was justified is totally irrelevant. Even if it were justified, the soft-underbelly of the JSC process remains exposed. Legal submissions in this regard will be advanced at the appropriate stage.
16 I respectfully submit that the JSC has failed to conduct its proceedings in accordance with its own rules of procedure. The purpose of these rules, by their own ipssissima verba, is
"to lay down the procedures that will apply in dealing with any complaint which result in an adverse finding by the JSC pursuant to Section 177(1)(a) [of the Constitution]"
17 It is with respect unfathomable that a procedure intended for a process with such serious implications on a judge can be open to discretionary application at the whim of the JSC, as the Acting Chairperson now suggests.
18 These rules are intended to give effect to constitutionally guaranteed rights, such as a right to procedurally fair administrative action affecting the rights of a a judge and a right of access to a fair and impartial adjudication of one's dispute. The JSC cannot appropriate for itself the right not to give effect to those rights.
19 The Acting Chairperson's suggestion that, by refusing an invitation to participate in the JSC proceedings from 1 April 2009 and thereafter, I thereby authored the unfairness of the procedure of which I complain, is unfair and self-serving. I had indicated through my attorneys of record on 27 March 2009 that the process was riddled with unlawfulness. The JSC dismissed my concerns without much consideration. Now he accuses me of causing the unfairness of the procedure. The accusation sits uncomfortably with the facts.
20 I deny all the averments and submissions made by the Acting Chairperson under this rubric to the extent that they are inconsistent with my submissions herein, the founding affidavit and the supplementary affidavit.
D Is the interim relief premature
21 The JSC says I should await the outcome of the process before complaining.
22 But it is precisely the inexorable march toward that outcome that I seek to halt - whatever it will be. The reasons are contained in my founding and supplementary affidavits. They are also contained in the transcripts of the JSC proceedings.
23 It appears that the Acting Chairperson would rather I first suffered the irreparable harm and then complain for having suffered it. The suggestion is with respect. The manner in which the JSC has conducted these proceedings, which may ultimately result in my being the first judge in the history of this country ever to be impeached, leaves me with a reasonable apprehension of bias by the JSC. Even if the finding is ultimately that my conduct is not impeachable, that is with respect not the test in these matters. It suffices that I have an apprehension that the JSC is biased against me and that the apprehension is reasonable. The facts around the refusal to afford me the time to recover from my medical indisposition, even when there is cogent medical evidence which none of the parties dispute, including the JSC itself, demonstrate that my apprehension is quite reasonable.
24 I submit that my application is not premature in the circumstances.
25 I submit further that I have satisfied the requirements for the interim relief that I seek.
E The Court's discretion
26 On the un-sanitised facts of this case, I respectfully submit that a granting of the interim relief is not a drastic measure at all. After all, I am not asking for a permanent stay of the proceedings even though I strongly believe that I have done nothing wrong in discussing cases with colleagues. What I ask is that I be judged by people who are fair and have the interests of justice at heart. The majority of the current JSC clearly does not have that interest.
27 One possible avenue is to appoint a panel of senior judges by agreement between the parties to consider the matter by way of arbitration. The difficulty with the current process, apart from the bias issue, is that the judge gets to be prosecuted for an offence the parameters of which are undefined. It is demonstrably unfair that a judge, and everyone else in the process including the JSC, should learn for the first time that certain conduct constitutes gross misconduct when he is found to have done enough to fit the description. The usual thing in a constitutional democracy is for the judge and both parties to know precisely what constitutes the offence before - not after - a finding of guilt is announced. I ask respectfully that this Court takes this uncertainty into consideration in the exercise of its discretion.
F Costs
28 I submit that since the matter is of fundamental importance for the judiciary, and it is in the interests of justice that the issue I raise in this application be determined by the Court, it is inappropriate that a costs order be made against any party.
29 All the parties in this case are funded by the state. It would be inappropriate in my respectful submission for the state effectively to seek and obtain a costs order against itself. I realise that I initiated the request for a costs order. I withdraw that prayer. I shall thus seek no costs against the respondents.
30 A costs order against me personally would also in my respectful submission be unduly punitive in the circumstances of this case, genuinely raising as it does fundamental issues of the legality of the process adopted by a constitutional body. The circumstances that arise in this case are unprecedented. It is genuinely with a view to obtaining a definitive ruling by the Court on the lawfulness of the process followed by the JSC in the impeachment proceedings initiated by the judges of the Constitutional Court that I approach this Court. This application is far from vexatious.
31 Although I have denied all averments made by the Acting Chairperson of the JSC to the extent that they are inconsistent with my submissions in my founding and supplementary affidavits as well as in this affidavit, I shall nevertheless deal seriatim with his averments, ex abudanti cautela.
AD THE AFFIDAVIT OF LEX MPATI P
32 Ad paragraph 1.1 thereof
I admit the contents of this paragraph.
33 Ad paragraph 1.2 thereof
The contents hereof are noted.
34 Ad paragraph 1.3 thereof
I deny that the factual matrix to which the Acting Chairperson deposes gives an accurate reflection of what has happened and refer to my founding affidavit and the facts to which I depose above.
35 Ad paragraph 1.4 thereof
I note the contents of this paragraph.
36 Ad paragraph 2 thereof
36.1 I note that the Acting Chairperson has read the Notice of Motion although there are indications in his answer that he may not have read the founding affidavit carefully.
36.2 I deny that the JSC has any legal basis for opposing the interim relief.
37 Ad paragraph 2.1 thereof
In denying the contents of this paragraph, I refer to the submissions I make in paragraphs 9 and 1 above.
38 Ad paragraph 2.1.1 thereof
38.1 I deny the averments made herein and refer to the submissions I make in the founding affidavit and under the rubric "urgency" above.
38.2 The reasons upon which my decision whether or not to bring this application were given to me only on 24 April 2009 by the JSC.
38.3 I have already explained how it came about that I could only have launched this application at the time that I did.
39 Ad paragraph 2.1.2 thereof
39.1 I have with respect already dealt with the issue of substantial redress that the Acting Chairperson raises in this paragraph. In this regard I refer to the submissions I make above under the rubric "Is the interim relief premature".
39.2 I deny that I have failed to satisfy the requirements for urgency.
40 Ad paragraph 2.2 thereof
40.1 I deny the averments made herein.
40.2 The submission seemingly founded on a res judicata argument is with respect legally unpalatable. Legal argument in this regard will if necessary be advanced on my behalf at the appropriate stage.
41 Ad paragraph 2.3 thereof
41.1 It appears, with respect, that the Acting Chairperson has not read my founding affidavit carefully, if at all. The allegations that
41.1.1 I have not shown that the JSC proceedings are unlawful,
41.1.2 I participated in the proceedings, and
41.1.3 I did not put the complaints I now advance in the founding affidavit to the JSC for consideration,
are not rationally connected to the facts to which I depose in the founding affidavit and those which appear on the record.
41.2 I deny that the interim relief is premature for the reasons advanced earlier in this affidavit.
42 Ad paragraph 2.4 thereof
I deny the averments hereof.
43 Ad paragraph 2.5 thereof
43.1 I deny the averments herein.
43.2 The un-sanitised facts justify this Court exercising its discretion in the interests of justice. I respectfully that it would be manifestly unjust to order that the JSC proceedings continue in the circumstances of this case as set out in the founding affidavit, in paragraph 11 of this affidavit under the rubric "urgency", and as demonstrated by the transcript of proceedings leading up to the decision of 7 April 2009 to push on with the proceedings in my absence.
44 Ad paragraph 2.5.1 thereof
For reasons already advanced, this submission is with respect legally unpalatable.
45 Ad paragraph 2.5.2 thereof
I deny that I "elected" to participate in the JSC proceedings. The true facts demonstrate clearly my aversion to so participating.
46 Ad paragraph 2.5.3 thereof
46.1 I note that it is the JSC's constitutional function to investigate and determine complaints against judges.
46.2 I deny, however, that the process followed by the JSC in the proceedings now the subject-matter of this application, is constitutional.
47 Ad paragraph 2.5.4 thereof
This submission is again, with respect, legally untenable.
48 Ad paragraph 3 thereof
I note the contents hereof. I point out, however, that members of the JSC have variously been inviting me, through my counsel, to bring urgent proceedings against the JSC. The Chairperson got what he asked for. He cannot now complain about "extreme pressure".
49 Ad paragraph 3.1 thereof
49.1 The application was delivered electronically on Thursday 7 April 2009.
49.2 The contents of all the annexures about which the Acting Chairperson now complains are in any event intimately known to the JSC as they were either generated by it or directed and conveyed to it.
49.3 Thus, the absence of annexures on the day the application was first delivered did not occasion any prejudice to the JSC for purposes of preparing opposing papers.
49.4 In any event, the Acting Chairperson's opposing papers delivered to my counsel at the steps of Court a few minutes before the hearing on Tuesday 12 May 2009 was neither signed nor commissioned. For all intents and purposes my legal representatives and I do not have a properly deposed affidavit to which to reply. Yet I make no fuss about it. The Acting Chairperson was in a similar position when he received the founding papers.
50 Ad paragraph 3.2 thereof
50.1 I deny that these allegations are sufficient to non-suit me in the circumstances of this case.
50.2 I have sought condonation for non-compliance with the rules of this Court in bringing this application on an urgent basis. It thus does not behove the Acting Chairperson to premise his application for a striking of my application from the roll on my non-compliance with the rules of this Court. Legal argument in this regard, if necessary, will be made on my behalf at the appropriate stage.
51 Ad paragraph 4 thereof
I deny that I have created "a wrong impression" and refer to my earlier submissions in this respect.
52 Ad paragraph 5 thereof
This accusation is both regrettable and incorrect.
53 Ad paragraphs 6 to 6.16 thereof
The sartorial bent put up by the Chairperson in these paragraphs is with respect misleading. I refer to my submissions under "urgency" above.
54 Ad paragraph 6.1 thereof
54.1 I have explained in my founding affidavit why it was impossible for me to prepare adequately for the hearing between 17 February 2009 and 1 April 2009.
54.2 The timing of the JSC for convening the formal hearing is in my respectful submission not co-incidental and seemed intended to interfere with my right to have the constitutional dispute I have with the judges of the Constitutional Court finally determined.
54.3 Since the JSC had undertaken to stop its proceedings pending the determination of the dispute between the judges of the Constitutional Court and me in the Courts, it must have known that the dispute was a constitutional dispute and so that, on a plain reading of sections 167(3) and 168(3) of the Constitution, the SCA would not have final say in the matter. Yet the JSC curiously scheduled the formal enquiry to commence on 1 April 2009, on which date it could not properly have known that the SCA would have handed down its judgment (see here). As it happens, the SCA handed down its judgment granting the appeal sought by the judges of the Constitutional Court on 31 March 2009 - the day before the JSC formal enquiry was scheduled to commence.
54.4 The only reasonable conclusion in these circumstances is that the JSC was intent on interfering with my right to apply to the Constitutional Court for leave to appeal against the decision of the SCA. It would have been impossible, in the time set by the JSC, for me and my legal representatives to prepare properly for the appeal in the SCA, the application for leave to appeal to the Constitutional Court, and the JSC formal enquiry. This was clearly an egregious attempt at interfering with my right in section 34 of the Constitution in order to facilitate my expeditious disposal through a patently flawed process.
54.5 I have challenged the lawfulness of the JSC choosing witnesses and "areas of dispute" for me in the letter dated 27 March 2009 which the JSC dismissed nonchalantly.
55 Ad paragraph 6.2 thereof
I deny that I accepted the dates imposed by the JSC and the Acting Chairperson cannot prove this allegation. The letter of 23 February 2009 does not evidence acceptance of the dates at all. And the JSC in any event left no room for negotiation in this regard in its letter of 17 February 2009. All it required input on was the access of the public and the media to the proceedings.
56 Ad paragraph 6.3 thereof
The letter of 27 March 2009 raises numerous concerns of a serious nature that go to the heart of the lawfulness of the JSC process. Bias was only one of them.
57 Ad paragraph 6.4 thereof
57.1 I deny that the JSC "considered" the request at all. It simply dismissed my concerns out of hand without any consideration as evidenced by the terse response to the bias allegation and the bare denials.
57.2 The decision was so lacking in substantive reasoning that the JSC was constrained later to give further written reasons on 1 April 2009 and again on 24 April 2009. Even then the decision to dismiss my concerns was not rationally connected to the information that was before the JSC and the reasons advanced for it. That is why I have come to this Court for relief.
57.3 The reasons given on 1 April 2009 were cobbled together in a space of about 15-20 minutes and handed to my counsel handwritten with a promise that "the rest" of the reasons would follow. They followed, as already submitted, on 24 April 2009 - 3 weeks later. Such was the measure of nonchalance.
58 Ad paragraphs 6.5 and 6.6 thereof
The allegations in these paragraphs are misleading. On 1 April 2009 I sought reasons from the JSC, through my counsel, for dismissing my serious concerns as raised in the letter of 27 March 2009. Although it gave hurriedly cobbled together reasons on the same day and promised to give "the rest" later, the JSC reverted to me with "the rest" of the reasons only 3 weeks later on 24 April 2009. My counsel would be available only 2 weeks later to prepare application papers.
59 Ad paragraph 6.7 thereof
I admit the contents hereof.
60 Ad paragraph 6.8 thereof
I am advised and believe that the transcript of proceedings show that it was in fact counsel for the judges of the Constitutional Court who sought an undertaking from my counsel that I would disavow any reliance on bias against the JSC. Justice President Ngoepe and Commissioner Bizos in fact intervened and pointed out that no counsel can be expected to make such an undertaking. The Chairperson appears not to remember accurately what transpired at the proceedings of which he was the convenor and chairman.
61 Ad paragraph 6.9 thereof
Again, this is an elliptic account of the facts. The Acting Chairperson, on behalf of the JSC, gave what he termed reasons for the JSC's refusal to accede to my request that was based on the concerns raised in the letter of 27 March 2009. It was then indicated that "the rest" of the reasons would follow. Commissioner Moerane suggested "tomorrow". But "the rest" of the reasons, such as they were, came only on 24 April 2009.
62 Ad paragraph 6.10 thereof
I deny that the JSC considered the medical certificate properly or at all. I have already show above why I say so and the transcript of the proceedings demonstrate this clearly.
63 Ad paragraph 6.11 thereof
63.1 It is correct that Pincus SC emphasised that the primary ground for his seeking a postponement was his un-preparedness and that my ill-health was "a related factor". Those were not my instructions.
63.2 In any event, the medical certificate and doctor's affidavit that were presented at that hearing in pursuit of a postponement application demonstrate clearly that my ill-health was more than just "a related factor". In its reasons, it is clear that the JSC did not take that view of my medical condition.
64 Ad paragraph 6.12 thereof
I note the contents of this paragraph.
65 Ad paragraph 6.13 thereof
I note the contents hereof but refer to the caution that Justice President Ngoepe made as regards "mathematical calculations ... when we are dealing with a condition of a human being". The JSC unreasonably trudged on along that path nevertheless.
66 Ad paragraph 6.14 thereof
I deny, for reasons already advanced, that the JSC's decision was in the interests of justice.
67 Ad paragraph 6.15 thereof
67.1 I deny that this was a separate application. A sine die application had been sought from the beginning on 1 April 2009. The JSC simply adjourned the matter for 2 days.
67.2 The allegation that the request was not accompanied by documentary evidence is simply not correct. I did not need new evidence because the certificate and affidavit that had been put up on 4 April 2009 was still relevant because the considerations on 7 April 2009 were properly whether my symptoms for Acute Sino-Bronchitis had "completely abated". The JSC did not make that relevant enquiry. It simply considered the sufficiency of its financial resources if it were to postpone the matter beyond April 2009. This was a patently irrelevant consideration. Alternatively, it certainly should not have been accorded more weight than the interests of justice which in my respectful submission would have come with hearing both parties to a dispute as important as this in the history of the judiciary in our country.
68 Ad paragraph 6.16 thereof
68.1 The decision does form part of the application and the founding affidavit says so expressly. It is annexed as "MJH8" thereto. The Acting Chairperson, again, appears not to have read the founding affidavit to which he answers.
68.2 It is my respectful submission that the decision is not rationally connected to the information that was before the JSC and the reasons the JSC gave for it.
69 Ad paragraph 7 thereof
69.1 The facts, which are borne out by the record, appear in summary above under "urgency"
69.2 I take exception to the accusation that I misled the Court by not disclosing full facts necessary to sustain urgency. The Acting Chairperson has no basis for making this accusation.
70 Ad paragraph 8 thereof
The allegations herein are demonstrably incorrect. On 28 March 2009 the JSC says it held a meeting at which it decided to dismiss my concerns raised in the letter of 27 March 2009. Through my counsel at the proceedings of 1 April 2009, I then sought a copy of the record of proceedings of that meeting as well as reasons. Despite indicating that it would do so, the JSC has still not provided me with that record of proceedings of the meeting of 28 march 2009. Some, but not all, the reasons for the decision to dismiss my concerns were given by the JSC on 1 April 2009 at the conclusion of the proceedings on that day. The rest of the reasons came only on 24 April 2009. I had expressly sought these reasons and record of proceedings of that meeting with a view to considering whether or not to launch these proceedings. It was thus only shortly thereafter that my counsel could prepare application papers because he was only available on 4, 5 and 7 April 2009 to work on this matter. Since he had been intimately involved in this matter from inception, I considered that it would have been foolish to brief new counsel to prepare the papers who would have had to acquaint himself first with the background of the matter before embarking on the exercise.
71 Ad paragraph 9 thereof
71.1 The statement attributed to my counsel as regards change of mind in relation to the bringing of the interdict application is incorrectly cited. It is clear on a plain reading of the relevant excerpt of the transcript that what was indicated was that, for the moment, there was no intention for bringing such an application. This is not surprising since the full reasons, such as they were, for the decision to dismiss my concerns were conveyed only on 24 April 2009. It was then that I considered that this application was a necessity.
71.2 I deny that the decision of the JSC in regard to my concerns raised on 27 March 2009 was conveyed to me on 28 March 2009. On the JSC's own version in the letter of 30 March 2009, the JSC held a meeting on 28 March 2009. It conveyed its decision on 1 April 2009 and against on 24 April 2009.
71.3 I deny that the urgency in this matter is of my own making.
72 Ad paragraph 10 thereof
72.1 I deny that a recusal application in the circumstances was the only, or even a viable, remedy.
72.2 I deny that I attempted to deprive the JSC of its constitutional jurisdiction.
72.3 The JSC sullied its own constitutional jurisdiction by failing to act within the letter and spirit of the Constitution.
73 Ad paragraphs 11 and 12 thereof
I have already explained that the decision that finally gave rise to this application was conveyed to me on 24 April 2009. My counsel could only prepare papers on 4, 5 and 7 May 2009 because he was busy in other matters between 24 April and 4 May. I have already explained why I could not reasonably brief another new counsel to prepare these papers.
74 Ad paragraphs 13, 14, 15 and 16 thereof and the affidavit of GEORGE BIZOS
74.1 Regardless of the attempt to cast in a different light the JSC deliberations of 7 April 2009 in relation to whether or not to accede to my request for a postponement on medical grounds, it is clear from the unsolicited dissenting view of one of the commissioners that the majority of the JSC members compromised the JSC's own proceedings and its constitutional function by having regard to irrelevant political considerations rather than the crisp relevant issue that was before them: whether or not my symptoms of Acute Sino-Bronchitis had by 7 April 2009 "completed abated" since 3 April 2009, so that I could reasonably be said to be capable of consulting with my legal representatives in Cape Town at 06h00 and participate meaningfully in the proceedings in Johannesburg by 09h00.
74.2 From Commissioner Bizos' affidavit, it appears he was more concerned with public perception of the JSC than what is in the interests of justice. This in my respectful submission presents a window through which this Court may peep into the thinking of the majority of the JSC as regards factors that it considered in arriving at the decision to refuse my request for an indulgence on medical grounds.
74.3 There is no rational explanation from either the Acting Chairperson or Commissioner Bizos, or any of the other members of the JSC who participated in those deliberations, why Commissioner Ngubane would lie about what was discussed on that day. No explanation in that regard is even attempted because none exists. Of all the other matters that the JSC took into account in its deliberations on that day, why would the issue of "shenanigans" be the only inaccurate account of the deliberations that Commissioner Ngubane gives?
74.4 The Acting Chairperson talks of his "several notes" that he kept on the members' deliberations on my request on that day, yet he does not even take this Court in his confidence by annexing them to his affidavit for this Court to consider as perhaps one of a number of evidentiary materials that could assist in resolving the dispute of fact between the Acting Chairperson and Commissioner Bizos on the one hand, and Commissioner Ngubane on the other. The inference is inescapable that either these notes do not exist or they do not advance the Acting Chairperson's cause and that of Commissioner Bizos in this regard. Otherwise the notes and the transcribed record of the private deliberations would have been furnished voluntarily.
74.5 I invite the Acting Chairperson to make available those notes to this Court as well as the transcribed record of those deliberations so that this Court can come to a firm and informed view of who is telling the truth about what was said at that meeting. In fact, I ask that this Court in the interests of justice refers this material dispute between Commissioners who perform a constitutional function that may have a very serious effect on the security of tenure of a senior judge, to oral evidence.
74.6 My profession as a judge is my life. I have worked very hard against serious odds to get here and I have made many sacrifices to one day serve my country in that capacity. The factual dispute, between senior lawyers who serve on the country's highest constitutional judicial authority, as regards the factors that were considered along the way to advancing closer to the impeachment of a senior judge is one that must be resolved before there can fairly and justly be any consideration of the proceedings before the JSC continuing. This is because the outcome of the enquiry into that dispute of fact could either show my apprehension of bias to have been reasonably justified or not. Until that factual dispute is resolved, there will forever be a question-mark about the integrity and lawfulness of the JSC process. Such a result is eminent undesirable.
74.7 Reference by the Acting Chairperson to use of the word "stratagem" by Commissioner Bizos during the hearing on 7 April 2009 relates to a totally different context unrelated to the separate deliberations of the JSC. That Commissioner Bizos used that word at the public hearing is no proof, in and of itself, that he used the same word and not "shenanigans" in the private deliberations of the JSC.
74.8 The Acting Chairperson says none of the reasons advanced by the majority "reflect political considerations of the sort alleged by" me. The Acting Chairperson is mistaken. The allegation of political considerations came from within the JSC itself and not from me.
74.9 The submission is also self-serving. The Acting Chairperson knows full well that the fact that a factor is not expressly stated in reasons for a decision as one of the factors that were taken into account in the reaching of that decision does is no proof, in and of itself, that the factor did not form part of the decision-making exercise. In fact, in the JSC's letter of 24 April 2009 ("LM7" to the opposing affidavit under reply), before the dissenting ruling by Commissioner Ngubane emerged, the Acting Chairperson denied that there was such a "minority ruling". Then a minority ruling emerged on 29 April 2009 demonstrating that regard had been had to political considerations. In light of the Acting Chairperson's denial of a minority ruling existing, one wonders whether the public would ever have learnt of its existence and its contents had it come through the channel of the JSC's secretariat. In my respectful view, this is a serious indictment on the integrity of the JSC process, where dissenting views are suppressed which could be helpful to me in defending myself against this trumped-up charge of non-descript "judicial misconduct". It also demonstrates the flaw in the process of a constitutional body whose decisions affect professional lives in the most serious way reaching decisions by simple majority and minority views being suppressed.
75 Ad paragraph 17 thereof
The attribution of political considerations to the JSC by one of its own Commissioners demonstrates that my reasonable apprehension of bias by the JSC has a firm footing.
76 Ad paragraph 17.1 thereof
I note the contents hereof.
77 Ad paragraph 17.2 thereof
77.1 I note the manner of the appointment of JSC commissioners.
77.2 The rest of this paragraph comprises a debate that should better have been had (and might very well have been had) among commissioners in their deliberations when concerns of "shenanigans" by the "new administration" were raised. This Court and I are not an appropriate audience for it.
78 Ad paragraphs 17.3, 17.4 and 17.5 thereof
Again, this debate belongs properly among the commissioners in their deliberations when concerns of "shenanigans" by the "new administration" were raised. This Court and I are not an appropriate audience for it.
79 Ad paragraphs 18, 19, 20 and 21 thereof
It is my respectful submission that on the true facts, this application is self-evidently urgent.
80 Ad paragraph 22 thereof
I have already dealt with this submission and repeat what I have said above. The submission is legally untenable with respect. Legal submissions if necessary will be advanced on my behalf at the appropriate stage.
81 Ad paragraph 23 thereof
81.1 I deny that the JSC convene on 5 July 2008 with the purpose of considering a recusal application.
81.2 That date was the first sitting of the JSC to consider the matter. The sitting was not convened with the specific purpose of considering the recusal application.
81.3 In any event, reference to the recusal application on that occasion is irrelevant for purposes of this application. The flaw in the process followed by the JSC on that occasion lies not in refusing the recusal application. It lies elsewhere and legal submissions in this regard will be advanced at the appropriate stage.
82 Ad paragraph 24 thereof
All I knew then was that an allegation of "judicial misconduct" had been made against me to the JSC and to the public. I had not idea, and still have none, what precisely constitutes "judicial misconduct" for purposes of section 177(1)(a) of the Constitution. I invite the JSC, as I did in my founding affidavit, to explain to this Court what the elements of "judicial misconduct" for purposes of impeachment under section 177(1)(a) of the Constitution are.
83 Ad paragraph 25 thereof
Again, these submissions are wholly irrelevant in these proceedings.
84 Ad paragraph 26 thereof
The decision of the JSC refusing my recusal application on 5 July 2008 is irrelevant in these proceedings. The flaw with those proceedings lies elsewhere and comprises legal submissions which will be advanced at the appropriate stage. Suffice to say at this stage that the JSC, as it then constituted, had no legal power to make the decision that it did.
85 Ad paragraph 27 thereof
These submissions are misplaced. The Acting Chairperson's res judicata argument is with respect legally untenable. The substance of the relief in the Court to which he refers was the constitutionality of the judges' conduct.
86 Ad paragraph 28 thereof
86.1 Again, the Courts in those cases were not concerned with the issue now before this Court.
86.2 There are, I respectfully submit, compelling reasons for this Court to exercise its discretion in the interests of justice. The interests of justice lie in the granting of the interim relief that I seek. The JSC will suffer absolutely no prejudice by it, except perhaps a lower score in the popularity stakes if Commissioner Bizos' standard is the appropriate measure. I submit with respect that public opinion ought not to be the standard by which the JSC measures its success at the expense of considerations of justice.
87 Ad paragraph 29 thereof
Again, the issue now before this Court were not before any of the previous cases between myself and the judges of the Constitutional Court. I am thus re-opening nothing by the declaratory order that I seek in paragraph 2 of PART A of the Notice of Motion.
88 Ad paragraph 30 thereof
I deny that the declaratory order is unfounded and I note the rest of the contents of this paragraph.
89 A paragraphs 31 to 35 thereof
89.1 Much of what is said in these paragraphs is irrelevant to this case.
89.2 Whether or not the minister had properly and justifiably recused himself is an irrelevant consideration. The indisputable legal position, with respect, is that in his absence - and that of his designated alternate - the JSC was not at large to make the decision that it made on 7 April 2007.
89.3 It will also not have the power to make a decision following its deliberations as regards whether my conduct was impeachable or not.
90 Ad paragraphs 36 to 39 thereof
It is my respectful submission that the JSC, as then constituted, acted ultra vires its own rules in referring the matter on 5 July 2008 to a formal hearing. Legal submissions in this regard will be advanced at the appropriate stage.
91 Ad paragraph 40 thereof
91.1 I fear the Acting Chairperson appears not to have understood the contents of my founding affidavit if he read it.
91.2 I deny the allegations made in this paragraph. They are totally unsupported by the record of proceedings and bear absolutely no rational connection to the founding affidavit and the annexures thereto in support of the averments made therein.
92 Ad paragraphs 41 to 45 thereof
The Acting Chairperson seems to misconstrue the legal point that is being made in my founding affidavit. I maintain that the JSC failed to conduct a preliminary investigation as it was required to do by its own Rules. Legal submissions in this regard will be made at the appropriate stage.
93 Ad paragraphs 46 to 65 thereof
93.1 I deny all the allegations made herein to the extent that they are inconsistent with my submissions in the founding affidavit, my supplementary affidavit and this affidavit.
93.2 I maintain that the JSC failed, fatally, to conduct itself in accordance with its own rules in its handling of the impeachment proceedings relating to me.
93.3 The suggestion that these rules are now suddenly discretionary is self-serving and quite astonishing. Legal submissions in the regard wil. Be advanced at the appropriate stage if necessary.
94 Ad paragraphs 66 and 67 thereof
I deny the allegations made in these paragraphs.
95 Ad paragraphs 68 to 70 thereof
I respectfully submit that there exist compelling reasons for this Court to exercise its discretion in favour of granting the interim relief sought.
96 Ad paragraph 71 thereof
These are irrelevant considerations for purposes of the relief sought in this application.
97 Ad paragraph 72 thereof
I deny that the JSC is not biased against me.
98 Ad paragraph 73 thereof
I note the content hereof.
99 Ad paragraph 74 thereof
99.1 There is no basis for striking the application off the roll because urgency is in my respectful submission self-evident.
99.2 I submit that a proper case is made out for the relief sought.
99.3 I seek no order as to costs and submit that this is not an appropriate case for such an order against any party.
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MANDLAKAYISE JOHN HLOPHE
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