– That’s the question raised by the Constitutional Court’s judgment in the Hlophe matter

IN the upheaval over government’s peculiar plans for the judiciary and the justice system, not to mention its new obsession for creating a compulsory national culture of keeping secrets, it’s understandable that many people had forgotten about the continuing saga of Judge President John Hlophe.

In fact I confess that when last week’s crucial judgment concerning Hlophe was handed down by theConstitutional Court it took a moment for me to remember what it was all about. In a way that’s one of the problems about Hlophe – virtually since his elevation to the position of Judge President he has been involved in a series of slanging matches, unseemly behaviour and bizarre litigation, and it’s both difficult and sometimes wearisome to keep track.

Unlike many decisions of theConstitutional Court this one was brief, clear, decisive and unanimous. At the time the matter was argued there were suggestions that unless Hlophe had his way a constitutional crisis was imminent. Now that rather graver issues are facing the rule of law in South Africa, the Hlophe-related ‘constitutional crisis’ has rather evaporated. Instead, in the wake of the judgment, we are left with two stark pictures: a petulant Judge President and a recalcitrant Judicial Service Commission, both of whom have had their bluff called by the courts.

But let’s begin with the commission, the body whose job is to interview and recommend candidates for judicial appointment and also to deal with complaints about judicial behaviour.

It would be hard to imagine many examples of behaviour less befitting a judge than that said to have been committed by Hlophe: that he tried to influence the outcome of a pending, highly political court case in which he had not been sitting. And it’s worth remembering that in the Hlophe matter the judges who made these complaints were not junior acting members of a lower tribunal. They were members ofSouth Africa’s highest court.

By repeating this obvious fact I am not suggesting that the judges who made the complaints were correct simply by virtue of their office; I am suggesting however that the commission was surely duty-bound to take their allegations seriously and conduct a proper hearing. And this they notoriously failed to do.

Put another way: if the commission is so negligent of its duty when dealing with complainants of the judicial status of those Constitutional Court members who asked for an investigation into Hlophe’s actions, what faith can the public have that commissioners will take any other complaint seriously? In fact if there’s any crisis in this sorry saga, it’s surely a crisis of public confidence in the commission and its willingness to do its constitutional duty without fear or favour.

The Supreme Court of Appeal ruled that the commission had not carried out its duty in relation to the complaint against Hlophe, but that it should now do so. Since then Hlophe has tried to prevent the appeal court ruling from being given effect by making a dramatic plea to the Constitutional Court. His lawyers asked for the court to be reconstituted to hear his challenge to the appeal court’s decision, even suggesting that judges should be appointed to theConstitutional Courtfor the sole purpose of hearing his matter.

It’s one of the most bizarre features of this whole matter that lawyers acting for, and presumably with the cooperation and backing of, such a senior jurist, should have made a suggestion that the Constitutional Court dismissed out of hand as unconstitutional.

In its decision the court wrote that the language, context and the scheme of the Constitution ‘all show that ad hoc acting appointments to cater for exceptional cases like these confronting us here are not permissible.’ Members of the court spoke of the potential dangers to judicial independence and the separation of powers that was ‘ever present in the appointment of individual judges to hear a specific case’, and they cautioned, ‘We must be mindful of this.’

What does it say about the constitutional instincts of Hlophe’s legal team that they advocated this bizarre strategy to deal with their client’s predicament?

An essential element re-emphasised by the Constitutional Court decision is that there is only one complaint now before the commission. Hlophe had brought a counter-complaint against the judges of the court for making a media statement about the steps they planned to take against him when they first asked the commission to investigate their allegations. His said this infringed his constitutional rights. That counter-complaint was dismissed by the commissioners, along with their dismissal of the original complaint against Hlophe. But while the appeal court set aside the dismissal of the original complaint it did not overturn the commission’s decision to dismiss Hlophe’s counter complaint.

That means Hlophe is on the back foot. If the commission follows the orders of the appeal court, which is now the final forum for this dispute, it must conduct a proper hearing, evaluate the evidence it hears and make a proper decision. And because his counter-complaint has been dismissed, it is now only Hlophe – and not the judges who brought the complaints against him – who will be under investigation.

There’s one other sting in the tail: the little matter of another complaint against Hlophe. This was brought by Freedom Under Law, the rule of law legal lobby group that successfully contested the failure of the commission to conduct a proper hearing into the allegations against Hlophe. Some time ago Freedom Under Law lodged an official complaint concerning the insulting language used by Hlophe in relation to the then Chief Justice, his deputy and other members of the highest court who had made the official allegations of misconduct against Hlophe to the commission.

That ‘scurrilous language’, says Freedom Under Law, shows that Hlophe is not fit for the office he holds.

I’d say that commissioners had better get used to increased scrutiny of their work. The public will want to know whether they are carrying out their duty, as ordered by the courts, to hold a proper investigation into the allegations against Hlophe by Constitutional Court judges. Freedom Under Law, meanwhile, bullish about its success at the two highest courts, will not hesitate to go back to court if it feels the commission is still shirking its duty. With such close attention being paid to the commission it will be instructive to see whether it actually investigates the foul, insulting – even incendiary – language used by the Judge President, or whether recalcitrant commissioners will have to be forced into action by yet another round of litigation.