Hlophe v Constitutional Court of South Africa
| Jurisdiction | South Africa |
| Judge | Mojapelo DJP |
| Judgment Date | 26 September 2008 |
| Citation | 2008 JDR 1247 (W) |
| Docket Number | 08/22932 |
| Court | Witwatersrand Local Division |
Mojapelo DJP:
[1] The Judge President of the Cape High Court (the applicant) seeks an order in Part B of the Notice of Motion declaring that the lodging of a complaint of gross misconduct against him by all the judges of the Constitutional Court of South Africa (the second to fourteenth respondents) violated the judicial authority of the Constitutional Court of South Africa (the first respondent) (prayer 1). The applicant seeks further orders declaring that the publication of a media statement by the second to the fourteenth respondents (all judges of the Constitutional Court) of untested allegations of gross misconduct against the applicant made by two of the judges of the Constitutional Court was unlawful (prayer 2), unreasonably and unjustifiably violated his constitutional right to human dignity (prayer 3), privacy (prayer 4), right to a fair hearing (prayer 5), right to equality (prayer 6) and his right to access to courts (prayer 7). Further he seeks an order declaring that a decision by the second to the fourteenth respondents to lodge a complaint with the Judicial Services Commission (the fifteenth respondent) is unlawful and legally incompetent (prayer 8). The applicant seeks in the alternative to all of the above prayers, an order directing, in the event that this Court is unable to deal with the relief sought, that the application is referred to the first respondent (the Constitutional Court) on an urgent basis and on the basis of
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direct appeal (prayer 9). As this Court proceeded to entertain the application with the concurrence of all the parties prayer 9, which is the alternative prayer, does not stand to be considered.
[2] On the papers before court the applicant also seeks in Part A of the Notice of Motion, an order against the Judicial Services Commission (the fifteenth respondent) interdicting the Judicial Services Commission (JSC) from proceeding with the hearing of oral evidence in respect of the alleged complaint by the second to fourteenth respondents, pending the outcome of the proceedings for the relief sought in Part B (the declarations in the preceding paragraph). However, as the fifteenth respondent furnished an undertaking to the applicant, prior to the commencement of the hearing of the application, not to proceed with the hearing of oral evidence pending the outcome of the application in this matter, it became unnecessary for this court to consider the interdict. Furthermore, while there was, on the papers before us, an application for consent to institute the proceedings against the second to fourteenth respondents as contemplated in section 5 of the Constitutional Court Complementary Act 13 of 1995, the court was advised at the commencement of the hearing that the requisite consent for institution of proceedings against all respondents, where applicable, had been obtained from the relevant authorities. This Court therefore proceeded to consider the application for declaratory orders with the concurrence of all parties to the application.
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[3] The application in Part B is opposed by the second to the fourteen respondent. The fifteenth respondents filed an affidavit indicating that it will abide the finding of the court and was represented at the hearing by counsel who made submissions on the limited area of the jurisdiction of the fifteenth respondent (the JSC) and on the discretion to be exercised by this court whether to make declaratory orders sought by the applicant. As this judgment is about Part B of the application, which is against the second to the fourteenth respondents (all judges of the Constitutional Court), the second to fourteenth respondents are for the sake of convenience and unless the context indicates otherwise, simply referred to as the respondents.
[4] The genesis as well as the facts and background to the application may be stated briefly as follows:
Towards the end of March 2008 and after certain matters involving the current President of the African National Congress, Mr J G Zuma, had been argued before the Constitutional Court and when judgment in those matters was pending, the applicant visited Judges Chambers at the Constitutional Court, during which, amongst other judges, he visited Jafta J (the thirteenth respondent) who was then acting as a Judge in the Constitutional Court;
Again on 25 April 2008 the applicant visited the Judges Chambers at the Constitutional Court during which, amongst
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others, he visited the chambers of Nkabinde J (the twelfth respondent);
On 30 May 2008, the respondents lodged a complaint against the applicant with the JSC and also released a media statement announcing that they had lodged such a complaint.
It is the lodging of that complaint and the publication of a statement about the complaint that gave rise to the present application. Since the lodging of the complaint and its publication are at the centre of this application, it is important to reproduce the complaint and make some observations about its outline. The complaint to the JSC read as follows:
"COMPLAINT TO THE JUDICIAL SERVICE COMMISSION BY THE JUDGES OF THE CONSTITUTIONAL COURT
A complaint that the Judge President of the Cape High Court, Judge John Hlophe, has approached some of the judges of the Constitutional Court in an improper attempt to influence this Court's pending judgment in one or more cases is hereby submitted by the judges of this Court to the Judicial Services Commission, as the constitutionally appointed body to deal with complaints of judicial misconduct.
The complaint relates to the matters of Thint (Pty) Ltd v National Director of Public Prosecutions and Others (CCT 89107), JG Zuma and Another v National Director of Public Prosecutions and Others (CCT 91/07), Thint Holdings (South Africa)
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(Pty) Ltd and Another v National Director of Public Prosecutions (CCT 90/07) and JG Zuma v National Director of Public Prosecutions (CCT 92/07). Argument in these matters was heard in March 2008. Judgment was reserved in all four matters. The Court has not yet handed down judgment.
We stress that there is no suggestion that any of the litigants in the cases referred to in paragraph 1 were aware of or instigated this action.
The judges of this Court view conduct of this nature in a very serious light.
South Africa is a democratic state, founded on certain values. These include constitutional supremacy and the rule of law. This is stated in section 1 of our Constitution. The judicial system is an indispensable component of our constitutional democracy.
In terms of section 165 of the Constitution the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state may interfere with the functioning of the courts. Organs of state must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the Courts.
Each judge or acting judge is required by item 6 of schedule 2 of the Constitution, on the assumption of office, to swear an oath or solemnly affirm that
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she or he will uphold and protect the Constitution and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. Other judicial officers or acting judicial officers must swear or affirm in terms of national legislation.
Any attempt to influence this or any other Court outside proper court proceedings therefore not only violates the specific provisions of the Constitution regarding the role and function of courts, but also threatens the administration of justice in our country and indeed the democratic nature of the state. Public confidence in the integrity of the courts is of crucial importance for our constitutional democracy and may not be jeopardised.
This Court - and indeed all courts in our country - will not yield to or tolerate unconstitutional, illegal and inappropriate attempts to undermine their independence or impartiality. Judges and other judicial officers will continue - to the very best of their ability - to adjudicate all matters before them in accordance with the oath or solemn affirmation they took, guided only by the Constitution and the law.
30 May 2008
JUDGES OF THE CONSTITUTIONAL COURT"
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The complaint appeared on the letter head of the Constitutional Court and was unsigned.
The media statement issued on the same day is identical in all respects to the complaint statement, save only that it bears a heading "Statement by Judges of the Constitutional Court" and in paragraph 1 uses the words "has been referred" in the place where the complaint uses the words "is hereby submitted". Save for those differences the two documents are identical word for word and in all other respects. The one does not clarify or add to the other in any way.
The applicant only knew for the first time on that day, that is 30 May 2008, that there was a complaint against him. This is how he came to know about it: At 11h58 he receives a call from the Chief Justice informing him that the judges of the Constitutional Court have decided to lodge a complaint against him. He is puzzled and when he asks for particulars of the complaint the Chief Justice asks him for his private telefax number and at 11h59 he receives the complaint statement by fax in his office.
In his words he says: "My heart sank when I received this fax from the Chief Justice but soon after receiving this alleged complaint I started receiving telephone calls from journalists. I was told by them that the Constitutional Court had issued a
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