Langa CJ and Others v Hlophe

• Jurisdiction: South Africa
• Judge: Harms DP, Streicher JA, Mthiyane JA, Nugent JA, Cloete JA, Ponnan JA, Mlambo JA, Snyders JA and Mhlantla JA
• Judgment Date: 31 March 2009
• Docket Number: 697/2008
• Hearing Date: 23 March 2009
• Counsel: GJ Marcus SC (with M Sikhakhane) for the appellants. DB Ntsebeza SC (with V Ngalwana and T Masuku) for the respondent.
• Court: Supreme Court of Appeal

The court: B

Introduction

[1] This is an appeal from a judgment of the South Gauteng High Court, Johannesburg, relating to a dispute between Justices of the Constitutional C Court (the CC) and a Judge President of a High Court. The court below was unusually though permissibly constituted as a full bench with five judges (Supreme Court Act 59 of 1959, s 13(1)(a)). The majority (Mojapelo DJP with Moshidi and Mathopo JJ concurring) upheld the respondent's claim for declaratory orders in part (Hlophe v Constitutional D Court of South Africa and Others [2009] 2 All SA 72 (GSJ) ([2008] 2 ZGPHC 289). Marais J and Gildenhuys J in separate judgments but for similar reasons disagreed; they would have dismissed the application. (References in this judgment to the High Court judgment are to the judgment of the majority.)

[2] The High Court granted the appellants leave to appeal. The respondent E sought leave from the High Court to cross-appeal to the CC notwithstanding that High Courts (and, for that matter, this court) are not entitled to grant such leave. He asked, in the alternative, for leave to cross-appeal to this court, but that application was fatally defective. In the event both applications were struck from the roll. F

[3] As a rule this court sits as a panel of either three or five judges but in view of the importance of the matter, and taking into consideration the request of the appellants, in which the respondent acquiesced, it was directed that the matter be heard by a larger panel (s 12(1)(c) of the Act). G

[4] At the request of the court advocates NC Maritz SC and KS Hassim of the Pretoria Bar filed concise heads of argument as amici curiae. We wish to express our appreciation for their contribution.

[5] The appellants are the Chief Justice (Langa CJ); the Deputy Chief H Justice (Moseneke DCJ); eight CC justices (Mokgoro J, O'Regan J, Sachs J, Ngcobo J, Skweyiya J, Van der Westhuizen J, Yacoob J and Nkabinde J); a recently retired CC justice (Madala J); and a member of this court (Jafta AJ) and one of the Eastern Cape High Court (Kroon AJ) who both were at the time acting CC judges. The respondent is the Judge President of the Cape High Court, Judge MJ Hlophe. I

[6] The case arose from a complaint of judicial misconduct laid by the appellants against the respondent with the Judicial Service Commission (the JSC) on 30 May 2008. The respondent laid a counter-complaint against the appellants on 10 June. While these matters were pending (and they still are) the respondent launched the subject application for J

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A an order declaring, in essence, that the CC had violated certain of his constitutional rights by laying the complaint and by issuing a media release stating that the complaint had been laid.

[7] The backdrop against which this case arose no doubt raises matters of public importance wherever the truth on those matters lies. But it B needs to be said at the outset that those matters lie for examination and consideration in another forum, namely the JSC, and they are only peripherally relevant to this case. This appeal is confined instead to two narrow questions of law relating to alleged violations of the Constitution. The first is whether the appellants, as judges of the CC, were obliged in C law to afford the respondent, because he is a judge, a hearing prior to laying the complaint against him before the JSC. And the second is whether, having lodged the complaint, they were obliged in law to keep that fact confidential. The circumstances in which those two questions arise appear later in this judgment. This judgment accordingly is not D concerned with the merit of the complaints to the JSC.

[8] Two of the respondents in the court below are no longer parties to the litigation. The one is the CC as an institution. The thrust of the respondent's substantive application was for an order declaring that the appellants had acted institutionally ('as a court') and'not merely as an assortment of individual judges' and, in that capacity, had violated his E rights. The High Court found that the appellants had not acted as an institution but as a group of persons who were coincidentally judges and that the respondent's application was in that regard misconceived. As a result the court refused to make an order implicating the CC itself and dismissed the application pro tanto.

F [9] The other party in the High Court that does not feature in this appeal is the JSC. The relief sought against the JSC was for a temporary interdict, which became moot, and the JSC has no further legal interest in the appeal.

The sequence of events

G [10] During March 2008, the CC heard the Thint/Zuma appeals from this court. They were of public interest and importance since they concerned the prosecution of a high-ranking politician, Mr Jacob Zuma, on a number of counts. One of the issues related to legal privilege. The CC reserved judgment. It was ultimately delivered after the events that H feature in this judgment and was reported as Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma and Another v National Director of Public Prosecutions and Others 2009 (1) SA 1 (CC) (2008 (2) SACR 421).

[11] Towards the end of that month the respondent visited Jafta AJ who I concluded that the respondent had attempted to influence him to find in favour of Mr Zuma. Knowing that the respondent intended to visit Nkabinde J, he warned her of the possibility that the respondent might repeat his attempt.

[12] The anticipated visit to Nkabinde J took place on 25 April, and she, J too, concluded that the respondent had sought to influence her. At the

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beginning of May and soon after the court term began Nkabinde J made A a report to another appellant and through her the matter was taken up with other members of the court. They met in the absence of two appellants, discussed the subject, and eventually agreed to lodge a complaint of judicial misconduct against the respondent with the JSC based on the information provided by the two justices. This was done on B 30 May.

[13] The gravamen of the complaint was in these terms:

'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 C judgment in one or more cases is hereby submitted by the judges of this Court to the Judicial Service Commission, as the constitutionally appointed body to deal with complaints of judicial misconduct.'

The document identified the case involved and stressed that there was no suggestion that any litigant was aware of or had instigated the respondent's D action. It contained further statements about the seriousness of the conduct; the democratic values contained in s 1 of the Constitution; the independence of the judiciary and the prohibition in s 165 of interference with courts; the judicial oath; that attempts to influence a court violate the Constitution and threaten the administration of justice; and that the CC and other courts would not yield to or tolerate attempts to E undermine their independence.

[14] A media release in virtually identical terms soon followed, which was sent automatically and electronically to all subscribers to the CC's information system.

[15] It should be noted at this early stage that (a) the respondent was not F apprised of the allegations or their source; (b) he was not asked for his version or comments; (c) he received no effective prior notice of the intention to lodge the complaint; and (d) he was not told of the intention to issue a media statement. The public, too, was not given any detail and was left with nothing more than the knowledge that a complaint with G serious implications had been lodged.

[16] The JSC held an urgent meeting on 6 June to discuss the matter but due to the lack of information it put the appellants on terms to flesh out the complaint. The respondent, as mentioned, launched his counter-offensive on 10 June, charging the appellants with violating his rights by H releasing a public statement about his alleged improper conduct before filing a proper (factual) complaint with the JSC. This, he said, violated his constitutional rights - the same rights implicated in the application before the High Court and to which we shall revert.

[17] The two justices responded to the request of the JSC by stating I that they had not lodged a complaint; that they did not intend to do so; and that they were not willing to make statements about the matter. However, the affidavit of the Chief Justice, which they in turn confirmed under oath, stated that the two justices always considered themselves to have been part of a collective complaint on 30 May and not as individual J

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A complainants. They soon afterwards indirectly confirmed their accounts of what had occurred by agreeing that their version as related by the Chief Justice was correct.

[18] In reaction to press reports the attorneys for Mr Zuma wrote a letter to the Chief Justice expressing concern about the matter and on 23 June B he issued a practice direction in the Thint/Zuma case drawing the attention of the parties to the fact that a complaint had been lodged; informing them that the submissions filed were available from the JSC; and inviting the parties to make any consequent submissions. Nothing much eventuated.

C [19] On 4 July the first appellant submitted the response to the JSC of the appellants to the counter-complaint. It, too, set out the allegations of the two justices involved, and they again subscribed thereto.

The application to the High Court

[20] The respondent's case was premised entirely on the allegation that D the appellants had acted together institutionally (what the respondent called acting 'as a...