14 February 2021 — This, FUL’s first podcast is a conversation with Judge Johann Kriegler, looking back at the earliest years of South Africa’s Constitutional Court, how it was very consciously created and situated but also at the very personal interactions that characterised that first Court. Today, the 14 February 2021, marks the twenty-fifth anniversary of the Court’s inauguration. But we are also living through a global pandemic, its effects felt acutely here in South Africa, with excessive expectations perhaps of the courts and law –as so often in moments of crisis in South Africa –to provide optimal resolution. Any look back has to be contextualised by this time — so very different in so many ways from that of those early years of the Constitutional Court.
It is with the greatest sadness that Freedom Under Law (FUL) marks the death of board member, George Bizos. George was, in every sense, a majestic South African. He showed, at every turn, what law should and could be: humane, principled, decent, just. He will be remembered for his outsized role in opposing Apartheid’s injustices and in ushering in a new constitutional democracy. But his commitment to justice went far beyond South Africa’s borders. We at FUL will remember him, only a few years back, sitting in a magistrate’s court in Harare offering support and solidarity to those who faced politically motivated charges there.
George dedicates his book Odyssey to Freedom to “those who let me walk with them.” Hamba kahle, George. Now go walk among the giants.
3 February 2020
Last week Judge Patricia Goliath, Deputy Judge President of the Western Cape, set off a judicial bomb when she levelled a number of serious complaints against her Judge President, the well-known Judge John Hlophe. When the Cape Bar Council suggested suspending him, the Chief Justice demurred and a day or two later the secretariat of the Judicial Service Commission (located in the Chief Justice’s office) publicly rebuked unidentified busybodies for suggesting urgent action in the matter, telling them to mind their own business and leave the matter in its capable hands.
That course of events rings a loud and profoundly disturbing bell. One of Judge Goliath’s charges is that Judge Hlophe had tried to manipulate an important case in President Zuma’s favour. Some 12 years ago the judges of the Constitutional Court levelled a tellingly similar charge against Judge Hlophe, complaining that he had lobbied two of their number to favour Mr Zuma, an accused in criminal cases they were considering. Both charges, if proven, would clearly call for Judge Hlophe’s summary impeachment.
At the time, by agreement with the Minister of Justice, Judge Hlophe appropriately took special leave but some eight months later, without reference to the minister and with the charge still very much hanging over his head, he turned up at the office and resumed control of the court. In the hope of galvanising the Judicial Service Commission into action, I produced an op-ed highlighting the grave rule of law implications of leaving a judge under such a cloud at the helm of a high court. This, in part, is what appeared in Business Day – 11 years ago, almost to the day:
“It is perfectly clear that Judge Hlophe has no right to return to work while the cloud remains over his head. Whether or not the minister has the legal power to compel him to do his duty is something altogether different. Duties are not duties only when they are legally enforceable; nor do they cease to be duties merely because they can be ignored with impunity. On the contrary, among honourable people many duties are acknowledged as binding obligations precisely because they are not legally enforceable. This is not lawyers’ talk but elementary decency applicable to all of us irrespective of our cultural or social differences.
“In the case of a judge the position is even clearer. Judge Hlophe is not a junior clerk in government service subject to the supervisory powers of ordinary employment. He is a judge of the High Court, an appointment which our Constitution clearly regards as special. This gives us the assurance that our judges are men and women with the necessary personal and institutional independence to uphold our rights impartially and without fear, favour or prejudice. To this end the office to which judges are appointed is specially privileged. Unlike members of the national legislature or executive, judges are not answerable to the electorate and are not subject to periodic re-election.
Unlike members of the public service, judges are not subject to civil service regulations, performance criteria or office hours. They do not rise through the ranks, are not subject to supervision or discipline at the hands of a superior, cannot be dismissed for incompetence or insubordination, and their salaries, allowances and benefits cannot be reduced. Nobody, not a judge president, not the chief justice, not the minister or even the president can tell judges when and how to do their jobs; and if judges fail to do their work diligently – or even competently – they cannot be fired (except in very special circumstances).
“But these very important privileges are not personal privileges. They are privileges that attach to the office so as to protect judicial independence, and they go hand-in-hand with heavy obligations. What gives the office its special character is not that there are no obligations but that the obligations of judicial office cannot be enforced from outside. We rely for their enforcement on the integrity and self-discipline of the judge.
“Accepting appointment as a judge creates a special kind of compact with society. While we entrust our judges with great freedom in the performance of their functions, they in return accept the onerous duty at all times to be worthy of such trust. Judicial ethics is therefore not about the enforcement of obligations but about integrity, restraint and the protection of the moral authority of the judiciary. It is about trust. ….
“There are indeed many obligations that attach to judicial office. They do not need to be spelt out in a contract of employment because every judge knows – or ought to know – what they are and when in doubt can consult the Judicial Code of Conduct or a colleague for guidance. In principle a judge should always, not only in the discharge of official duties, act honourably and in a manner befitting judicial office. Nothing a judge does or does not do, on or off the bench, should bring the judiciary into disrepute. In the result many things that ordinary citizens are entitled to do are not permissible for a judge. A judge should never be seen in a casino or a seedy club. A judge may not have a drink too many in a public place.
Judges never become involved in politics. They avoid public altercations and litigation. They never comment publicly on court cases. Indeed, they should avoid the limelight at all times. Judicial independence is not licence. It has its own special framework of dos and don’ts by which judges are ethically bound. At the core of all these obligations is the obligation to preserve the integrity of the judiciary. ….
“For the present the public clearly cannot be expected to accept that Judge Hlophe hears their cases or heads the administration of justice in the Cape High Court. While he stands accused by his peers of seeking to subvert the course of justice, he simply does not enjoy the requisite trust in his integrity. We are not concerned here with the presumption of innocence. The issue is public confidence in the administration of justice. ….
“A judge president, besides actually hearing cases in court, exercises numerous discretionary powers affecting the interests of the public, the legal profession and the judiciary. The impropriety of the judge president’s insistence on occupying the office while accused of such a serious charge is all the greater. The suspicion alone disqualifies him.
“The judge president has no more right to continue in judicial office than a suspected paedophile has to continue running a nursery school. Surely it would seriously undermine public confidence in the law enforcement system if a police station commissioner on bail for corruption were to remain at his desk pending his trial? And surely the need for public confidence is all the greater where we are dealing with the head of the judiciary in the Western Cape? ….
“If his own conscience does not persuade him to stay away from his office, the Judicial Service Commission should be urgently convened to consider a recommendation to the President under section 177(3) of the Constitution that he be suspended from office pending the determination of the charge against him.”
Predictably, in 2009 Judge Hlophe’s conscience did not persuade him to stand down. Less predictably – but not surprisingly – the JSC’s response was a disgraceful cover-up. That nearly succeeded. Had the Supreme Court of Appeal, on Freedom Under Law’s urging, not ordered a reopening and proper enquiry, the matter would have rested there. But even the court order, condemning the JSC’s dereliction of duty as it did, was not enough.
Over the years since then, and notwithstanding Freedom Under Law’s persistent efforts, nothing has actually changed. Somehow, whether by the ingenuity of his “Stalingrad” strategy, possibly also thanks to fecklessness and misplaced solidarity on the part of others, Judge Hlophe has been allowed to rule his roost for close on twelve years; this while all that was needed was to schedule a couple of hours to hear and test the veracity of Judge Hlophe’s explanation of his travelling from Cape Town to Braamfontein, only there to engage in unsolicited debates (one with a relative stranger) about a politically charged case that had nothing to do with him.
In the circumstances the JSC can hardly expect the public to accept its pious assurances that the current matter will be dealt with appropriately. Its lamentable track record, not only in respect of Judge Hlophe but also in the equally notorious Motata case (where it irrationally overruled its own tribunal’s recommendation, letting Judge Motata off with a relative slap on the wrist) speaks for itself. Nor can it expect the public to be content with its proceedings (if any?) involving Judge Hlophe continuing behind closed doors. The judge’s conduct is a matter of grave – and entirely justified – public concern, his name a household word, seen more often in the media than in the Law Reports.
The public is also concerned about the conduct of the JSC. It has to rebuild public confidence from scratch. This is no time for dignified aloofness. Prompt and transparent action is needed to dissipate the toxic atmosphere on the Western Cape Bench. Manifestly the starting point – and hopefully the solution – is the urgent removal of the Judge President, preferably by concerted peer pressure but, if necessary, by use of the constitutional and statutory suspension and removal mechanism available.
The time for pious legalistic platitudes has passed – if ever there was one. The problem created by Judge Hlophe has to be confronted once and for all.
Every day of inaction that passes further erodes public faith and optimism.
Johann Kriegler, a former justice of the Constitutional Court, chairs the civil society organisation Freedom Under Law
Judges deny complicity, but the complaint against John Hlophe poses grave questions about their own integrity
5 February 2020
Earlier this week the judges of the Western Cape High Court elected, through the office of the Chief Justice, to issue a fairly remarkable statement on the controversy generated by the complaint brought by Deputy President, Patricia Goliath against Judge President, John Hlophe.
There were the usual platitudes about how they welcomed the Judicial Service Commission’s statement that it would seek to resolve the matter as expeditiously as possible. But then there was this:
It has been suggested in the press that the judges of this Division have remained silent through cowardice or complicity. That is emphatically not so. Given the procedure for investigating complaints against judges, the proper place for judges with relevant knowledge to speak is before the JCC [Judicial Conduct Committee] and any Judicial Conduct Tribunal that may be established.
And then this:
We can assure the public that we have always adjudicated, and will always adjudicate, cases allocated to us fearlessly and with absolute impartiality.
Is that all the judges of the division who chose to issue the statement? Permanent and acting judges? And these were the issues on which they chose to speak with one, united voice?
That seems fairly odd. Because, of course, among the most grave allegations made by Goliath is that cases were allocated to judges according to their perceived partiality. And not run-of-the-mill, custody dispute cases (though that would have been sufficiently concerning) but matters of the gravest consequence for every South African. Of the Earthlife Africa matter, requiring determination of the validity of South Africa’s various nuclear energy agreements, Goliath has said of Hlophe that he “attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed to the former President.”
Goliath also maintains that the appointment of acting judges, many of whom served for extended periods, was undertaken by Hlophe and his wife Judge Salie-Hlophe as if it were their personal largesse to be gifted their favoured persons.
For what it’s worth, it is interesting to note the curious snippet contained in the judgement delivered last week in the matter between the Department of Agriculture, Forestry and Fisheries and the law firm of B Xulu and Partners Incorporated. Barnabus Xulu, of course, is the personal lawyer of Hlophe. Last week’s judgment requires of Xulu that he repay over R20 million to the department but an earlier stage of the litigation, during which Xulu had been demanding payment of those monies had come before Goliath as judge. When she requested additional evidence from Xulu and that other potentially interested parties be notified, he complained to Hlophe. Golaith thereafter no longer presided in the matter.
That may be utterly coincidental. And Goliath’s allegations in respect of Hlophe may prove to be untrue. But it’s hard not to see how the judges of the Western Cape High Court don’t apprehend that the complaint and surrounding context pose the gravest questions for their integrity and impartiality. And short of definitive resolution of the complaint, no aggrieved public statement assuring the public of their impartiality could possibly be enough.
The judges also contend that their silence is not the product of cowardice or complicity. It’s certainly true that it would be inappropriate for judges to weigh in on matters of everyday social comment. To do so would be to risk the integrity of the judiciary and impair confidence in its fairness and impartiality. They speak principally through their judgments. But when the matters of the day go straight to the heart of their integrity and impartiality, as the allegations contained in the Goliath complaint necessarily do, they must speak.
And such statements must have weight. They can’t issue empty assurances and certainly not in this instance because they must know, as their statement also acknowledges, that until the complaint and surrounding allegations are definitively addressed their integrity hangs in the balance.
23 January 2020
Whenever the situation in South Africa seems particularly bleak and depressing – sort of like right now – you can trust that there’ll be a letter circulated by some high-profile figure or an opinion piece from a well-respected journalist about how we should all count our blessings: those blessings typically being a vibrant and robust civil society, an independent and courageous media and crowning them all, a world-respected and impeccable judicial branch of government.
Many who might know better have been prepared to go along with that characterisation – reckoning that South Africa’s traumatised collective psyche requires such assurance, even if miscast. But I wonder whether, once the process set in motion by Western Cape High Court Deputy President Patricia Goliath’s complaint against Judge President John Hlophe plays itself out, there will again be ready reference to our judiciary and its management as exemplary features of our democracy.
The allegations contained in the complaint could not be more serious in and of themselves. Among other things, Goliath maintains that when it came time to allocate a hearing to the Earthlife Africa matter, challenging South Africa’s nuclear energy deals, Hlophe expressed the view that criticism of former President Zuma in this regard was unwarranted and “attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed to the former President.”
Reportedly, Goliath’s allocation of the Mulaudzi v Old Mutual matter, without the assent of Hlophe, also drew considerable opposition from Hlophe and ultimately to him depriving her of the ability to allocate any future cases. The Mulaudzi matter is of significance in that a full bench of the Supreme Court had found that Hlophe – presiding at an earlier stage of the litigation – had not brought an open and impartial mind to bear on the adjudication of the matter.
Goliath’s complaint that Hlophe seeks to use improper influence comes, of course, against a long-running and seemingly interminable Judicial Service Commission (JSC) – appointed process to determine whether Hlophe did in fact approach two judges of the Constitutional Court in an attempt to improperly influence that court’s judgement in another matter also involving Jacob Zuma and the Thint arms company.
But the weight of this complaint is not to be understood only in the allegations against Hlophe and his wife, Judge Gayaat Salie-Hlophe – against whom Goliath also levels accusation. Even if ultimately upheld, these are but two judges. And if a swallow doesn’t a summer make, so too do two judges not make for a captured bench.
And yet, searching questions have to be asked of how such a situation, if true, has been allowed to prevail at the Western Cape High Court. Hlophe, among the most senior judicial officers in this country, has been facing the most serious and concerning allegations – that he attempted to influence fellow judges on the highest court of the land – for well over a decade. The process to determine the veracity of these charges has itself been underway – intermittently – for at least a decade. And still with no definitive resolution in sight.
To what extent has the manner in which this process been managed– under the charge of the JSC, among our highest authorities tasked with the administration of justice – enabled and allowed the “climate of fear and intimidation” that Goliath alleges currently prevails in Western Cape High Court division.
And how is it that the allegations contained in Goliath’s affidavit – of physically assaulting a judge, of victimising judges, of abusing, insulting and intimidating colleagues and subordinates – been offered to the JSC by one lone voice. How, if true, can these conditions and this climate not be apparent to all those who inhabit and interact with them?
We do not expect that our judges and most senior legal practitioners be Herculean. But we do and should expect them to strive to represent fundamental tenets of justice and fairness and to object forcefully when, in the administration of justice, that are flagrantly violated.
If the allegations contained in Goliath’s complaint are true, for shame … and shame not only for Judges Hlophe and Salie-Hlophe.
Nicole Fritz is the CEO of FUL
MEDIA STATEMENT BY FREEDOM UNDER LAW
26 January 2020
For over 12 years now Freedom Under Law (FUL) – an NGO established to protect and advance the rule of law across Southern Africa – has pressed for a decisive outcome in complaint after complaint relating to Mr Justice Hlophe, Judge President of the Western Cape.
The decade since has vindicated that assessment. The judge it described as ‘this highly talented man [who] carried the hopes of all who are passionate about transformation of the judiciary’, having been recruited at the age of 35 from the University of Transkei direct to the Cape Bench, has gone on to plunge the judiciary in more sordid scandal and public disrepute than any judge in its history.
It is nothing short of a disgrace that nearly 12 years on, the complaint laid by all Constitutional Court judges against Judge Hlophe for his attempt to interfere in their independent consideration of matters relating to then-President Zuma remains unresolved. FUL was obliged to institute legal proceedings against the JSC to compel it to do its duty. Its conduct was, embarrassingly, characterised by the Supreme Court of Appeal as nothing less than ‘irrational’.
Now, with that complaint still not resolved, a fresh scandal has broken. It is hardly a year since the Supreme Court of Appeal found, in the most direct terms, in a case appealed to it, that he was guilty of bias. This not of a junior judge, but a judge entrusted to lead over 30 other judges.
In his valedictory address in the Constitutional Court late last year, retiring Justice Cameron singled out the Hlophe saga as a lingering cloud over legal life in South Africa. Yet it has continued – and this week it acquired a yet darker aspect.
This week the second most senior judge in the Western Cape lodged further complaints with the JSC, alleging attempts by Judge Hlophe to interfere in litigation. It also alleges physical assaults by Hlophe JP on other judges, as well as intimidation, victimisation and abuse.
FUL supports Nadel’s call for the urgent suspension of Judge Hlophe. It is clearly right in principle: no judge should sit in judgment while himself facing serious allegations which go to his or her fitness to hold office, let alone lead a court.
Judge Hlophe’s response to this call by an important representative body of legal practitioners is very clear.
According to the official roll of the Western Cape High Court released for Monday he has made himself the presiding judge in its most public court: the motion court. There he will engage with legal practitioners and the ordinary, often unrepresented public.
This situation is intolerable.
Meeting today, the FUL Board resolved unanimously that the time for platitudes and tired clichés is past. The current head of the Western Cape High Court is compromised. Until such time as a proper investigation is completed and all consequential processes – which may include impeachment – are completed, Judge President Hlophe cannot be allowed to exercise the powers of a judge.
5 December 2019
Freedom Under Law (FUL) views with deep concern the implications for the rule of law throughout the region of this week’s revelations of corruption at the highest levels of government in Namibia, as uncovered in the Al Jazeera documentary, Anatomy of a Bribe.
The investigation reflects ruthless misuse of one of Namibia’s important natural resources (its fishing industry is valued at yielding USD 750 million in revenue per year). Using what it presents as detailed banking and other records and hidden camera recordings of secret meetings it provides a shocking example of how corruption-enablers in the region simultaneously impoverish ordinary people, enrich themselves, and strip Africa’s natural resources.
Among those alleged to be involved are a multinational Icelandic fishing company, Namibian ministers, officials and lawyers, front companies as well as Angolan interests. FUL applauds the decisive action taken by Namibia’s Anti-Corruption Commission, its police and prosecuting authority in within days arresting and charging two Ministers of State and senior officials.
Of particular concern to FUL is the crucial enabling role also alleged to have been played by private legal practitioners in making the fraudulent and corrupt schemes possible by acting as conduits and facilitators. FUL calls upon the Namibian Law Society to follow the example of the country’s Anti-Corruption Commission in without delay investigating the latter allegations. They concern the former (as Attorney General) chief law officer and thereafter Minister of Justice, as well as a senior Windhoek private law firm.
So far as FUL is aware the Namibian Law Society has yet to speak a word or take a step, except to note that it has received no formal complaint against any legal practitioner. In the face of such damning allegations against some of the most prominent members of the legal profession in Namibia that seems an entirely inadequate response. Prompt and resolute investigative and disciplinary action by the watchdog of the legal profession, protector of the public and ally of the administration of justice in Namibia, the Law Society of Namibia, is now required.
Jan Gerber News 24
26 November 2019
Advocates Nomgcobo Jiba and Lawrence Mrwebi will not be reinstated at the National Prosecuting Authority (NPA).
On Tuesday, the portfolio committee on justice and correctional services resolved it would not recommend to the National Assembly to have Jiba and Mrwebi reinstated in their positions at the NPA.
The committee will adopt its report on Wednesday and it will be before the National Assembly next Tuesday.
President Cyril Ramaphosa fired Jiba and Mrwebi in April following an inquiry headed by retired Constitutional Court Justice Yvonne Mokgoro, News24 previously reported.
The inquiry found they were not “fit and proper to hold their respective offices”, according to a statement from the Presidency.
The decision had to be referred to Parliament to determine whether Jiba and Mrwebi should be reinstated, not whether they should be fired.
Jiba made the committee’s work easy when she wrote to National Assembly Speaker Thandi Modise earlier this month, stating she would not be seeking restoration by Parliament to her position in the NPA.
This after her court bid to order Ramaphosa and National Director of Public Prosecutions Shamila Batohi to reinstate her “with all associated employment benefits with immediate effect”, failed.
READ MORE: Nomgcobo Jiba ditches bid to return to NPA
DA MP Werner Horn said it would be a “serious overreach” if they reinstated someone who accepted the president’s decision and findings of the Mokgoro inquiry. The other MPs agreed.
Mrwebi, however, complicated matters.
He wrote a letter to the committee on October 31, asking for an opportunity to be heard with his legal counsel. In the letter, Mrwebi expressed the view that Ramaphosa was not empowered to institute the inquiry.
In July, he was allowed to provide the committee with a representation, which he did.
Horn dismissed Mrwebi’s argument about why Ramaphosa should not have instituted the inquiry. He said the committee was obliged to accept the findings of the inquiry and it was “not Parliament’s role to act as a type of appeal court”.
ANC MP Hishaam Mohamed said he could not see on what Mrwebi would enlighten the committee.
Committee chairperson Bulelani Magwanishe said Judge Robert Henney, who dismissed Jiba’s application, asked why they have not sought to interdict Ramaphosa’s decision to institute the inquiry.
Only one MP wanted to allow Mrwebi to address the committee – the EFF’s Mbuyiseni Ndlozi.
“How can a Parliament of the people say I won’t hear someone who is asking to be heard. This is a Parliament of the people, Mrwebi is the people,” Ndlozi said.
Several MPs pointed out Mrwebi had ample opportunity to communicate with the committee and that their process was fair.
31 July 2019
Yesterday General Richard Mdluli, former head of Crime Intelligence in the SAPS, was convicted in the High Court, Johannesburg on counts of kidnapping, assault with intent to cause grievous bodily harm, assault and intimidation.
This follows a series of legal challenges, over several years, by Freedom Under Law to decisions which would have given Gen Mdluli impunity and kept him in his crucial post. The charges against Gen Mdluli relating to kidnapping and assault of Oupa Ramogiba had initially been withdrawn by prosecutors Chauke and Jiba, while fraud and corruption charges were withdrawn by prosecutor Mrwebi. Justice Makgoba initially granted Freedom Under Law an urgent order directing that Gen Mdluli stand down from his position pending the determination of a review of that decision.
In doing so, the Court stressed that a constitutional democracy could not tolerate a situation in which one of the country’s key crimefighters continued to perform his daily functions while himself facing serious allegations of criminality. That Gen Mdluli had not been finally convicted of these grave crimes was not the issue.
In due course Freedom Under Law’s review of the prosecutors’ decision too was upheld.
Gen Mdluli’s trial ensued, and has extended over a lengthy period, culminating in yesterday’s conviction by Justice Mokgatlheng.
While it is unfortunate that the charges of fraud and corruption were not reinstated by the NPA, it is an important vindication of the rule of law that one of South Africa’s most senior police officers has been held accountable for some of the crimes he has committed.
It is a cause for reflection that had Freedom Under Law, one of a group of civil society watchdogs active in this way, not challenged the decisions to withdraw charges and to keep Gen Mdluli at his desk, his impunity would have been assured.
25 May 2019
Freedom Under Law (FUL) is dismayed but not surprised to learn of the Public Protector’s findings in respect of Mr Ivan Pillay’s early retirement and Minister Pravin Gordhan’s authorisation of the retirement. The matters canvassed in the Public Protector’s report are the exact same matters as those which frame one of the most notorious episodes in the National Prosecuting Authority’s history – the decision to charge and then ultimately ignominiously withdraw charges against Gordhan, Pillay and former SARS Commissioner, Oupa Magashula.
This attempt to reheat a long cold dish and serve it up to the public as evidence of wrongdoing is on its own alarming. But that the Public Protector releases her report a mere two days after receiving responses from the implicated parties – failing to meaningfully engage those responses – makes a mockery of the most basic tenets of justice.
She does so in a week in which a court has found in respect of another of her investigations that: “the Public Protector did nothing to assure the public that she kept an open and enquiring mind and that she discovered, or at least attempted to discover the truth.”
With this her latest report, the Public Protector yet again makes no pretence of what she is about.