Hlophe, Motata: Who are we to judge?

Professor Pierre de Vos, who teaches constitutional law at the University of the Western Cape, gave his thoughts in his not-to-be-missed blog Constitutionally Speaking on submissions by Judge President John Hlophe’s lawyers. They suggested the treatment meted out to their client, as opposed to that of the judges of the Constitutional Court, was inconsistent. In this regard they drew attention to the fact that their client, who has not been found guilty of anything, had been asked to step aside while the other judges, who were found to have breached his rights, were not.

De Vos said: “Judge President Hlophe is being accused by 14 judges — all having sat or continue to sit on the highest court in South Africa! — of having unlawfully tried to influence them to decide probably the most high-profile politically relevant case in South Africa’s history in a particular fashion, and that he did so in order to advance his judicial career. If these charges are true, the judge president would be guilty of gross misconduct of the highest order. If true, he would be a disgraceful, unethical, self-serving crook and an enemy of justice and the judiciary. If true, no decent person should really want to be seen in his company — ever again. Of course, maybe the 14 judges are lying. Or maybe they misunderstood what the judge president did and what his intentions were. In that case, the judge would be innocent and his name would eventually be cleared.

“The Constitutional Court judges, on the other hand, were found by a lower court to have breached the rights to dignity and equality of Judge President Hlophe because they announced the existence of a complaint against him before formulating the charges against him in detail.

“So, on the one hand we have allegations that — if they were to be true — would have to lead one to conclude that the accused is a crook. On the other hand we have a finding that on a specific interpretation of the law, the judges of the Constitutional Court got their timing wrong, thus breaching the rights of a fellow judge. The former — if true — would amount to scandalous abuse of power. The latter amounts to a mistake about the specific interpretation of the law. To equate these two situations — as Hlophe’s lawyers seem to do — displays a chutzpah and a lack of moral clarity that is breathtaking, to say the least.”

In my humble opinion, the views of the professor reflect those of the majority of people within the profession. In equating the one with the other, Judge Hlophe’s legal team is not doing its client any favours and, if anything, this approach will further alienate its client from other members of the legal fraternity. Moreover, I believe that the judge, as well as Judge Nkola Motata, through their conduct, have created problems that need to be addressed by the judiciary. It is these problems that I would like to touch on.

In the minds of many people, myself included, a high court judge has to conduct himself or herself with dignity and integrity above that of any other person in society. Indeed, no matter how difficult it might be in practice, they have to be seen as model citizens, displaying the highest moral standards and obeying the laws of the country they will be expected to enforce.

Judges are required to be aloof, impartial and fair adjudicators of the civil and criminal laws of the Republic of South Africa. As such they directly or indirectly play a vital role in the lives of all South Africans as they go about their task of interpreting, creating and enforcing the law. As a result our judges are held in awe and rightfully treated with the utmost respect.

South African judges are highly regarded the world over and generally uphold the finest traditions of the bench. Accordingly our judges carry the additional burden of maintaining the standards and traditions of those who came before them.

As many laymen and women would have noted, attorneys and advocates who appear before our judges are required to introduce themselves, continuously bow and scrape before them in court and punctuate every sentence with “My Lord” or “Your Honour”. This, together with people’s conduct in court, demonstrates the respect that the judges are afforded and which is their due.

Both Judge Hlophe and Judge Motata are acutely aware of what is set out above.

Accordingly, their conduct in allegedly openly disregarding the dignity and mores of the profession is not only an affront to the judiciary but to the ordinary citizens of this country, who are entitled to expect far better from our judges.

In the case of Judge Motata, his behaviour in dealing with the police in front of bystanders is not that befitting of a judge. In the case of Judge Hlophe, his refusal to step back while facing the allegations before the Judicial Service Commission is not what we expect of a judge, much less a judge president. In the case of Hlophe, controversy seems to have dogged much of his career.

In both cases it is not only the conduct complained of but all the highly disturbing peripheral issues that are surfacing that will make it difficult for counsel or attorneys who will have to appear before them on behalf of clients. As most lawyers will tell you, clients are always asking about who the judge is and what he is like.

The conduct of both judges might undermine not only their position but the judiciary as a whole.

In addition, those of us who make a point of reminding politicians that they should respect the judiciary and not inflame the public by making comments about judges, are left looking ridiculous when there are pictures of judges crashing into walls, allegedly drunk and purportedly swearing at police and bystanders, splashed across the front pages of Sunday newspapers.

This conduct and the negative perception of our judges that is being created in both cases is something that needs to be addressed. Even if both are completely cleared of any wrongdoing their behaviour will not soon be forgotten by the public. This goes to trust and a positive perception of our judges, which are two vital cornerstones upon which an effective judiciary is built.

In finalising the issues with both judges the judiciary will also need to be seen to be addressing these problems as well.

To ignore them is to invite far greater problems.