Ministers don't order Judges around (cont.)
Ministers don't order Judges around, not even when they are under a cloud as dark and as large as that created by the charges Hlophe faces. He is entitled to the presumption of innocence, like any accused person. All judges, including those facing impeachment charges, are subject only to the law and the Constitution. It is their official function, as judiciary, to apply these "without fear, favour or prejudice." In accordance with the separation of powers doctrine, there is no law which entitles any Minister in the executive branch of government to give orders to judges. On the contrary, the Constitution unambiguously declares that:
"No person or organ of state may interfere with the functioning of the courts."
"Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts."
The independence of the judiciary is not a negotiable feature of our constitutional order. It is so essential to peace, prosperity and progress that it must be jealously guarded and maintained. Without it, a Zimbodian future looms.
The salient details on Hlophe are as straight-forward as they are startling: in May last year the Justices of the Constitutional Court complained that Hlophe had interfered with their functioning by trying to influence the outcome of certain appeals to secure a finding that would have favoured Jacob Zuma, the president of the ANC. Two of the more junior Justices were allegedly interfered with by Hlophe who, although he is based in Cape Town, approached them in their chambers in Braamfontein, uninvited, to bring pressure to bear for the outcome desired by him and Zuma.
These are serious charges. Not only are they a flagrant and direct violation of the first section of the Constitution quoted above (section 165(3)), they also amount to criminal conduct in the form of attempting to defeat the ends of justice and contempt of court. This is hardly the behaviour one expects of any judge, let alone a senior Judge President who has held his high office since the turn of the millennium.
There were immediately calls for his resignation or, failing that, his suspension pending the hearing of the complaints made. Hlophe responded by asking for "special leave" pending the resolution of the complaints. Brigette Mabandla, the then Minister of Justice, considered this request, and mindful of her duty to assist and protect the courts, granted leave to Hlophe until the complaints are resolved. Leaving him at the head of the Cape High Court would have been akin to placing a suspected pedophile in charge of a kindergarten.
The complaints have not been resolved. On the contrary they have become bogged down in a morass of litigation of an unprecedented nature initiated by Hlophe. It is now on appeal to the Supreme Court of Appeal, with the leave of the Johannesburg High Court. Leave is given in such cases when the lower court is of the view that there is a reasonable prospect that another court will come to a different conclusion. The order of the lower court is suspended and can not be executed pending the outcome of the appeal.
Despite the fact that the complaints against Hlophe remain unresolved, it now appears that he unilaterally chose to return to work last week, thereby cocking a snook at the very basis upon which he was permitted to take "special leave". This is an irresponsible and unacceptable stunt on the part of one who should know better. Look at the explanation given for this by Hlophe adviser and apologist in chief, Paul Ngobeni, a UCT assistant registrar, who is himself no stranger to disciplinary proceedings. He is quoted in the press as saying:
"He is daring the justice minister to suspend him if he believes he has grounds."
The Minister has no such power. It is only the President, on the advice of the Judicial Service Commission (JSC), who may suspend a judge facing charges on which he could be impeached, the very position in which Hlophe finds himself. It is most inappropriate to issue a dare of this nature. The common cause facts sketched above strongly suggest that in the absence of "special leave" a suspension is the only proper option. This is what the JSC may be pondering when it meets shortly to re-consider the matter.
Ngobeni asserts that Hlophe has "been out too long" and is tired of living off taxpayers' money.
No doubt the taxpayers are equally tired. The only reason for being "out too long" is of Hlophe's own making, it is his bizarre litigation against his accusers. If he were to abandon the novel judgment in his favour the JSC hearing being held up by the pending appeal could start without delay. If Hlophe is genuinely concerned about living off taxpayers, he is free to return his not inconsiderable emoluments to the state.
Ngobeni also asserts that:
"No one has ever said the man is incompetent."
This is false. Several charges of gross incompetence have in the past been laid against Hlophe and he has not written a reported judgment since 2005.
Ngobeni suggests that it would be "unfair" to suspend Hlophe when his accusers "who have a judgment hanging over their head" are still at work.
This is a complete non-sequitur. No-one, not even Hlophe, has hitherto suggested that the Justices should be suspended for prematurely publishing their complaint against him, which is the essence of Hlophe's counter-complaint. Comparing this, and the questionable judgment flowing from it, to the serious charges that await Hlophe is risible.
While it is probably true that the Minister of Justice is justifiably angered by Hlophe's latest unruly antics, his actual response can not be faulted. He has the task of assisting and protecting the courts. He has very properly pointed out to Hlophe that:
"the condition on which the previous minister granted him special leave has not changed and thus he should remain on special leave until the matter is resolved."
This is an accurate summation of the situation, it is not an "order" but it is a clear warning to Hlophe that if he does not heed the condition upon which his request for "special leave" was granted, consequences will follow - hence the urgent and unscheduled meeting of the JSC to consider the matter further.
Hlophe did not appear at his chambers on Friday and the regular Judges' meeting was presided over by his deputy, as has been the case since last June. Hopefully he will remain on special leave rather than risk the indignity of suspension.
Hlophe has single handedly done more to damage the dignity and legitimacy of the courts than all of his "political appointee" predecessors as Cape Judge President put together. His actions constitute a threat to the independence of the judiciary and provide copious ammunition to those misguided Polokwane resolution takers who aspire to executive control of the judiciary. Hlophe undermines the very institution he is sworn to uphold; he ought to resign now, and the Minister ought to create the conditions upon which it is possible for him to do so with such dignity for all concerned as can be salvaged from the situation. Any other course is fraught with challenges to our carefully crafted constitutional order.
Paul Hoffman SC
31 January, 2009.