THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 52/2011

In the matter between:

FREEDOM UNDER LAW
Applicant

and

THE ACTING CHAIRPERSON:
JUDICIAL SERVICE COMMISSION
First Respondent
THE JUDICIAL SERVICE COMMISSION
Second Respondent
CHIEF JUSTICE PIUS NKONZO LANGA
Third Respondent
DEPUTY CHIEF JUSTICE DIKGANG MOSENEKE
Fourth Respondent
JUSTICE THOLAKELE HOPE MADALA
Fifth Respondent
JUSTICE JENNIFER YVONNE MOKGORO
Sixth Respondent
JUSTICE CATHERINE MARY ELIZABETH O’REAGAN
Seventh Respondent
JUSTICE ALBERT LOUIS SACHS
Eighth Respondent
JUSTICE SIRRAL SANDILE NGCOBO
Ninth Respondent
JUSTICE THEMBILE LEWIS SKWEYIYA
Tenth Respondent
JUSTICE JOHANN VINCENT VAN DER WESTHUIZEN
Eleventh Respondent
JUSTICE ZAKERIA MOHAMMED YACOOB
Twelfth Respondent
JUSTICE BAAITSE ELIZABETH NKABINDE
Thirteenth Respondent
JUSTICE CHRISTOPHER NYAOLE JAFTA
Fourteenth Respondent
JUDGE FRANKLYN KROON
Fifteenth Respondent
JUDGE PRESIDENT MANDLAKAYISE JOHN HLOPHE
Sixteenth Respondent

Neutral citation:
Freedom Under Law v JSC (52/2011) [2011] ZASCA 59
(31 March 2011)

Coram:
STREICHER,
BRAND,
CACHALIA,
THERON
and
SERITI JJA
Heard:
22 MARCH 2011
Delivered:
31 MARCH 2011
Summary:
Judicial Service Commission – constitutional duty to properly
investigate allegations of gross misconduct on part of judge –
cross-examination required to resolve disputes of fact –
company whose mission to strengthen independence of
judiciary has standing in respect of alleged failure of JSC to
properly investigate.

_____________________________________________________________________

ORDER
_____________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Mabuse J sitting as
court of first instance)

Leave to appeal with costs including the costs of three counsel is
granted to the applicant.
Leave to cross-appeal is refused with costs including the costs of
three counsel.
The appeal is upheld with costs including the costs of three
counsel.
The order by the High Court is set aside and replaced with the
following order:

„1
The decision of the Judicial Service Commission at its
meeting on 15 August 2009, “that the evidence in respect of the
complaint does not justify a finding that Hlophe JP is guilty of gross
misconduct” and that the matter accordingly be “treated as finalised”, is
reviewed and set aside.

The first and second respondents on the one hand and the
sixteenth respondent on the other hand are ordered jointly and severally
to pay the applicant‟s costs.‟

_____________________________________________________________________

JUDGMENT
_____________________________________________________________________

STREICHER JA (BRAND, CACHALIA, THERON and SERITI JJA
concurring)

[1] This is an application for leave to appeal and a conditional
application for leave to cross-appeal. A sub-committee of the Judicial
Service Commission (JSC), the second respondent, conducted a
preliminary investigation into a complaint by judges of the Constitutional
Court (third to fifteenth respondents) against Judge Hlophe, the Judge
President of the Western Cape High Court, Cape Town, the sixteenth
respondent, and a counter-complaint by Hlophe JP against those judges of
the Constitutional Court. Upon receipt of the sub-committee‟s report the
JSC, by a majority vote, dismissed the complaints. The applicant
thereupon applied to the North Gauteng High Court, Pretoria for an order
setting aside the decision by the JSC to hold a preliminary enquiry and
the subsequent decision to dismiss the complaints. The high court‟s
dismissal of the application, the subsequent application for leave to
appeal and the conditional application for leave to cross-appeal gave rise
to the present application to this court. The application for leave to cross-
appeal is conditional upon the application for leave to appeal succeeding
and is against the high court‟s finding that the applicant had standing in
the matter. Both applications were referred to the court for oral argument
together with an indication that the parties should be prepared to argue
the merits of the appeal, which they did.

[2] On 11 and 12 March 2008 the Constitutional Court heard argument
in four matters regarding the prosecution of Mr Jacob Zuma and Thint
(Pty) Ltd on corruption charges (these matters are at times referred to as
the Zuma/Thint matters or simply as the Zuma matters). The cases
concerned, among other things, the lawfulness of search and seizure
procedures and the question of legal professional privilege over
documents held on behalf of clients. The Constitutional Court reserved
judgment at the conclusion of the hearing of the four matters. Nkabinde J
and Jafta AJ were two of the eleven judges who heard the matters. The
latter, at the time, was a permanent member of this court acting as a judge
of the Constitutional Court.

[3] Before judgment in the Zuma/Thint matters was handed down
Hlophe JP visited Nkabinde J and Jafta AJ separately in their chambers at
the Constitutional Court and had discussions with them. These
discussions were subsequently reported to the other members of the
Constitutional Court and led to a complaint being lodged by the judges of
the Constitutional Court with the JSC that „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‟.
The judges of the Constitutional Court also published a press statement
that they had done so. Hlophe JP then lodged a counter-complaint against
the judges of the Constitutional Court. He accused them of having
undermined the Constitution by making a public statement in which they
sought to activate a procedure for his removal for alleged improper
conduct before properly filing a complaint with the JSC and of having
violated his rights to dignity, privacy, equality, procedural fairness and
access to courts by filing the complaint even before they had heard his
version of the events.

[4] The JSC requested statements from the judges who were directly
involved in the incident whereupon Nkabinde J and Jafta AJ responded
that they were not complainants, that they had not lodged a complaint, did
not intend to lodge one and did not intend making statements about the
matter. Shortly thereafter a statement by Langa CJ on behalf of all the
judges of the Constitutional Court and confirmed by, amongst others,
Nkabinde J and Jafta AJ, in so far as the contents of the statement
referred to them, was filed with the JSC in support of, and in answer to,
the complaint and the counter-complaint.

[5] In the statement filed by the Constitutional Court judges in support
of their claim Langa CJ related the versions of Jafta AJ and Nkabinde J as
to what was said during their discussions with Hlophe JP and how it came
about that the complaint was lodged. According to the statement
Nkabinde J and Jafta AJ had made it clear to Langa CJ and Moseneke
DCJ that in their view the approach by Hlophe JP had been improper and
that after they had dealt with the matter by rejecting the approach of
Hlophe JP they did not consider it necessary to lodge a complaint or
make a statement. A meeting of Constitutional Court judges was
thereafter called at which Langa CJ and Moseneke DCJ reported that in
their view the conduct of Hlophe JP, as reported to them by Jafta AJ and
Nkabinde J, constituted a serious attempt to influence the decision of the
Court in the Zuma/Thint cases. After discussion the judges decided to
lodge a complaint with the JSC.

[6] Hlophe JP also filed a statement in answer to the complaint and in
support of his counter-complaint. He contended that the Constitutional
Court judges made themselves guilty of gross misconduct by laying the

complaint and by issuing a media release stating that a complaint had
been laid, before even having afforded him a hearing, thereby violating
his constitutional rights and undermining the integrity of the judiciary. He
stated that the history related by the judges of the Constitutional Court
showed a motive by Langa CJ and Moseneke DCJ to get rid of him at all
costs. He stated further that it would seem that inappropriate pressure had
been brought to bear on Nkabinde J and Jafta AJ to associate themselves
with the complaint and that Langa CJ and Moseneke DCJ failed to
convey the correct position „in respect of the so called “complainant
judges” to the JSC‟ and hoodwinked them into supporting a decision
without knowledge of the position taken by Nkabinde J and Jafta AJ.
Given the personalities involved in the cases which the Constitutional
Court had to decide, Hlophe JP suggested, „it does appear that there may
well have been a political motive on the part of the Chief Justice and his
Deputy‟.

[7] In terms of s 177(1) of the Constitution a judge may be removed
from office only if the JSC finds that the judge suffers from an incapacity,
is grossly incompetent or is guilty of gross misconduct and if the National
Assembly calls for that judge to be removed by a resolution adopted with
a supporting vote of at least two-thirds of its members. The JSC may
determine its own procedure but its decisions must be supported by a
majority of its members.1 Rule 3 of the rules adopted by the JSC
provides:
„3.1
On receipt of a complaint and the responses referred to above, the JSC shall
consider the relevant documentation and decide whether, prima facie, the conduct
complained of would, if established, amount to such incapacity, incompetence or

1 Section 178(6) of the Constitution.

misconduct as may justify removal of the Judge in terms of Section 177(1) of the
Constitution.
3.2
In the event of the view of the JSC being that the conduct complained of
would not constitute grounds for removal from office, the matter shall be treated as
finalised and the complainant and the Judge notified accordingly.
3.3
In the event of the JSC resolving that the pertinent conduct, if established, may
justify removal from office, the matter shall be dealt with further as provided below.‟

[8] Rule 4 makes provision for a preliminary investigation by a sub-
committee and rule 5 provides for a hearing at which the judge is charged
in terms of a charge sheet. The judge must be asked to plead to the
charge, is entitled to legal representation, may call evidence, cross-
examine witnesses and present argument. After the enquiry the JSC must
make a finding as to whether or not the judge suffers from incapacity, or
is grossly incompetent, or is guilty of gross misconduct as envisaged by s
177(1).

[9] On 5 July 2008 the JSC, after having considered both the
complaint and counter-complaint, released a media statement in which
they said:
„The Commission unanimously decided that, in view of the conflict of fact on the
papers placed before it, it was necessary to refer both the complaint by Constitutional
Court and the counter complaint by the Judge President to the hearing of oral
evidence on a date to be arranged by the Commission.‟

[10] The JSC advised the parties that 1 to 8 April 2009 had been set
aside for the hearing of oral evidence on disputes on what it considered to
be material disputes of fact which could not be resolved on the papers. It
indicated that it believed that judges Nkabinde, Jafta, Langa, Moseneke,
Mokgoro and Hlophe would have to give evidence. In a subsequent letter

the JSC advised that all questions had to be aimed at resolving the
disputes of fact that had been identified.

[11] Upon application by Hlophe JP on 1 April 2009 for a
postponement sine die, the JSC postponed the matter until 4 April 2009.
On that date an application by Hlophe JP for a further postponement, on
medical grounds, for a period of ten days was turned down but the matter
was adjourned to 7 April 2009. When a further application for
postponement was refused on the last-mentioned date Hlophe JP‟s
counsel withdrew. The matter then proceeded in the absence of Hlophe JP
and his legal representatives. The evidence of, amongst others, Nkabinde
J and Jafta AJ was received and they were questioned by the
Commissioners.

[12] An urgent application by Hlophe JP to the South Gauteng High
Court, Johannesburg for an order declaring the entire proceedings of the
JSC commencing on 5 July 2008 unlawful and therefore void ab initio
was partly successful in that the court set aside the proceedings of 7 and 8
April 2009 and ordered that they were to commence de novo on a date
suitable to the parties. The court could find no basis for a finding that the
proceedings on 5 July 2008 were unlawful.2

[13] On 20 July 2009 the JSC reconvened to discuss the complaint and
counter-complaint. In the meantime its composition had changed. A new
President, Mr Jacob Zuma, had been elected and a new Minister of
Justice had been appointed.  The Minister of Justice, ex officio, became a
member of the JSC and the newly elected President Zuma, as he was
entitled to do, replaced four of its members, who had been appointed by

2 Hlophe v The Judicial Service Commission & others [2009] 4 All SA 67 (GSJ).

his predecessor, with four new appointees. One of the new members had
previously acted as counsel for one of the complainants and recused
himself from the discussion leaving four new members who had not
previously been involved in the matter. The reconstituted JSC decided
that it was necessary to commence with the matter de novo. Having
reconsidered the matter they concluded in terms of rule 3.1 „that the
allegations made in the Complaint and Counter complaint, if established,
would amount to gross misconduct‟ and in terms of rule 4.1 appointed a
sub-committee to investigate the complaints by conducting interviews
behind closed doors with Langa CJ, Moseneke DCJ, Hlophe JP,
Nkabinde J and Jafta AJ.

[14] Shortly after the decision had been taken, Mail and Guardian Ltd
and others applied to the South Gauteng High Court, Johannesburg for an
order setting it aside. They contended that the JSC could not have
reversed its earlier decision to hold a formal enquiry and that the
interviews should not be closed to the public. In the answering affidavit
filed by the JSC in that application the deponent Mr Semenya SC stated
that the decision to commence with the matter de novo was considered to
be the best route to follow because there was a question mark over the
issue as to whether the previous decision to commence with the hearing
was properly made „in that there was a challenge raised as to whether a
preliminary investigation, in terms of rule 4.1 of the Rules of the JSC, had
preceded the decision to commence with the hearing‟. This contested
issue could not be ignored, so the JSC decided, as it could expose the JSC
to further litigation.  Malan J held that the JSC was entitled to reverse its
earlier decision and conduct a new preliminary hearing but reviewed and

set aside the decision that the interviews be held behind closed doors and
ordered that they be open to representatives of the media.3

[15] The JSC sub-committee held the interviews and upon conclusion
thereof in a report to the JSC recommended „fresh deliberations to the
complaint and the counter-complaint‟ in light of the proceedings before
them and the transcript of the proceedings of April 2009. The JSC
reconsidered the matter and dismissed both complaints. When the
complainants did not take the matter any further the applicant applied for
the decision of the JSC to hold a preliminary enquiry and the subsequent
decision to dismiss the complaints to be reviewed and set aside. Hlophe
JP opposed the application on the grounds that the applicant did not have
standing in the matter and that it was in any event not entitled to the relief
claimed. The high court held that the applicant did have standing but that
it was not entitled to the relief claimed. The applicant now applies for
leave to appeal the high court‟s decision and Hlophe JP opposes the
application also on the basis that the high court erred in finding that the
applicant had standing in the matter. I shall deal with the standing of the
applicant first and then with the decision to hold a preliminary enquiry
and the decision to dismiss the complaints in turn.

Standing
[16] The applicant is a not for profit company registered in terms of s 21
of the Companies Act 61 of 1973. Its mission is, amongst others, to
promote democracy under law, advance the understanding and respect for
the rule of law and the principle of legality and secure and strengthen the
independence of the judiciary. It states that the application is being
brought in its own interest, in the public interest, and in the interest of all

3 Mail and Guardian Ltd v Judicial Service Commission and others 2010 (6) BCLR 615 (GSJ).

litigants and future litigants before the courts over which the fourteen
judge respondents may preside.

[17] The applicant‟s case is that the decision by the JSC to have a
preliminary enquiry and its decision to dismiss the complaint and
counter-complaint was in breach of s 165(4) of the Constitution and also
constituted unlawful administrative action in breach of s 33 of the
Constitution. Section 165(4) of the Constitution provides that organs of
state, through legislative and other measures, must assist and protect the
courts to ensure the independence, impartiality, dignity, accessibility and
effectiveness of the courts. In terms of s 33 of the Constitution everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair and the Promotion of Administrative Justice Act 3 of
2000 (PAJA) was enacted to give effect to these rights as required by
s 33(3) of the Constitution.

[18] In terms of s 38 of the Constitution anyone acting in the public
interest has the right to approach a competent court, alleging that a right
in the Bill of Rights, which includes a right in terms of s 33, has been
infringed or threatened.

[19] The Constitutional Court has repeatedly stressed that a broad
approach to standing should be adopted also in matters that involve an
infringement of rights other than those protected in the Bill of Rights.4 In
Ferreira v Levin NO & others 1996 (1) SA 984 (CC) para 165
Chaskalson P said that he could see no good reason for adopting a narrow
approach to the issue of standing in constitutional cases.5 In Kruger v

4 Albutt v Centre for the Study of Violence and Reconciliation & others 2010 (3) SA 293 (CC) para 33.
5 See also para 229 where O‟Reagan J expressed a similar view.

President of Republic of South Africa & others 2009 (1) SA 417 (CC) the
Constitutional Court recognised the standing of an attorney who applied
in his own interest and in the public interest for a proclamation to be
declared invalid in circumstances where s 38 was not of direct
application. Skweyiya J said:
„Where the practitioner can establish both that a proclamation is of direct and central
importance to the field in which he or she operates, and that it is in the interests of the
administration of justice that the validity of that proclamation be determined by a
court, that practitioner may approach a court to challenge the validity of such a
proclamation.‟6

[20] In Lawyers for Human Rights & another v Minister of Home
Affairs & another 2004 (4) SA 125 (CC) para 17 the Constitutional Court
once again confirmed that a broad rather than a narrow approach should
be adopted to standing to ensure that constitutional rights enjoy the full
measure of the protection to which they are entitled. In respect of
litigation in the public interest they adopted the approach advocated by
O‟Reagan J in Ferreira v Levin when dealing with the standing
provisions of the Interim Constitution which they considered for all
practical purposes to be the same as the standing provisions of s 38 of the
Constitution. According to that approach a court will be circumspect in
affording standing to applicants purporting to act in the public interest.
Various factors to determine whether a person is genuinely acting in the
public interest were identified by O‟Reagan J and some were added. They
stressed that the list of relevant factors is not closed and stated that „the
degree of vulnerability of the people affected, the nature of the right said

6 Para 25.

to be infringed, as well as the consequences of the infringement of the
right are also important considerations‟.7

[21] There is no reason to doubt the applicant‟s statement in its
founding affidavit that it is acting in the public interest. Every South
African citizen has an interest to be served by judges who are fit for
judicial office and by courts which are independent and impartial. But no
judge may be removed from office unless the JSC has found that he
suffers from an incapacity, is grossly incompetent or is guilty of gross
misconduct. It is therefore in the interest of every South African citizen
that the JSC should properly and lawfully deal with every complaint of
gross misconduct by a judge that may threaten the independence and
impartiality of the courts and may justify the removal of that judge from
office. Should it shirk its duty as is alleged it had done in this case it can
have grave repercussions for the administration of justice.

[22] The Constitutional Court judges did not act in their own interest
and their complaint is not that they have been wronged in their individual
capacities. They acted in what they considered to be the public interest. I
therefore agree with counsel for the applicant‟s submission that this „is
not a matter that can or should be left to the judges individually involved.
They are entitled to act in their own interests and are not required to
litigate in the public interest. They are also inhibited by the constraints of
the reserve appropriate to judicial office, which renders them averse to
involvement in public controversy‟. One can also not expect individuals
to call the JSC to account in expensive court actions. It is for bodies like
the applicant that can afford to do so and whose very mission is to secure
and strengthen the independence of the bench to take action.

7 Para 18.

[23] For these reasons I am satisfied that the high court correctly held
that the applicant has standing in this matter, which means that the
counter-appeal must fail.

The decision not to hold a formal enquiry
[24] The applicant submitted that the JSC decided on 5 July 2008, in
terms of rule 3.1 of its Rules, in respect of the complaint as well as the
counter-complaint, that prima facie the conduct complained of would, if
established, amount to such misconduct as may justify removal of the
judges concerned in terms of s 177(1) of the Constitution. In consequence
it decided to embark on a formal enquiry in terms of rule 5 of its Rules. It
submitted further that when the JSC on 22 July 2009 decided to appoint a
sub-committee in terms of rule 4.1 to investigate the complaints by
conducting interviews behind closed doors, it did so under the
misapprehension that it had never before decided that a prima facie case
as aforesaid had been made out and that a formal enquiry in terms of rule
5 should be undertaken. Having been based on a mistake of fact, so the
applicant submitted, the decision to appoint a sub-committee should be
reviewed and set aside.

[25] In support of its submission that the JSC had on 5 July 2008 taken
the prima facie decision referred to in rule 3.1 the applicant relied on an
affidavit by Mpati P, at the time the acting chairperson of the JSC. The
affidavit was filed on behalf of the JSC in the urgent application by
Hlophe JP to have the entire proceedings of the JSC commencing on 5
July 2008 set aside on the basis first, that such a prima facie decision had
not been taken and second, that the procedure adopted in respect of the
enquiry embarked on did not comply with rule 5. In his affidavit Mpati P

stated that three documents referred to by him showed that Hlophe JP‟s
contention that no prima facie decision had been taken was incorrect. He
denied furthermore that the procedure adopted in respect of the enquiry
scheduled for 1 to 8 April 2008 did not comply with the provisions of rule
5. Mr Bizos SC, who, at the time, was a member of the JSC deposed to a
confirmatory affidavit. The three documents relied upon are: (i) The
media statement issued by the JSC on 5 July 2008 in terms of which the
JSC stated that it had unanimously decided that, in view of the conflict of
fact on the papers placed before it, it was necessary to refer the complaint
and counter-complaint to the hearing of oral evidence; (ii) The document
in terms of which the JSC advised that 1 to 8 April 2009 had been set
aside for the hearing of oral evidence of the judges specified on disputes
that it considered to be material disputes of fact; and (iii) A document,
issued by the chairman of the JSC, containing directions to be observed
during the hearing. One of the directions being that all questions put to
witnesses in cross-examination had to be aimed at resolving disputes of
fact that had been identified.

[26] In the present application the JSC, in an answering affidavit by Mr
Semenya SC, one of the newly appointed members of the JSC, made a
complete turnabout and denied that a prima facie decision had been taken
at the meeting of 5 July 2008 and that a rule 5 formal enquiry had been
embarked on. No explanation for the turnaround was proffered. Mr
Moerane SC who was a member of the JSC at the time when the 5 July
decision was taken, deposed to an affidavit confirming what Mr Semenya
SC said.

[27] The applicant submitted that the JSC, in terms of its rules, could
only have proceeded to an enquiry after having taken the prima facie

decision required and that it had indeed instituted an enquiry in terms of
rule 5. The newly constituted JSC on the other hand submitted that the
three documents relied upon by the applicant for drawing the inference
that the required prima facie decision had been taken is not susceptible to
the drawing of the inference contended for. It submitted furthermore that
the enquiry instituted was not an enquiry in terms of rule 5 in that no
charge sheet was prepared, the judges accused of misconduct were not
asked to plead and cross-examination was restricted contrary to the
provisions of rule 5.

[28] The court below held in favour of the JSC but in my view it is not
necessary to resolve the dispute. The affidavits filed are not the affidavits
of the JSC but are affidavits by individual members of the JSC. There is
obviously no unanimity among the members of the JSC concerning the
decision that was taken on 5 July 2008 and whether the enquiry
proceeded with thereafter was intended to be an enquiry in terms of rule
5. That being the case and in the light of the fact that the composition of
the JSC had changed the sensible course to follow would have been to
reconsider the matter de novo whatever the previous decisions  may have
been. I cannot accept, as contended by the applicant, that the decision to
reconsider the matter de novo was taken by the JSC on the basis of the
members being agreed that no prima facie decision as required had been
taken on 5 July 2008 or on the basis of it being agreed that the enquiry
proceeded with was not intended to be a rule 5 enquiry. The decision
could in the light of the different versions of the members of the JSC only
have been taken on the basis that whatever the position may have been it
should be reconsidered.

[29] It follows that it cannot be said that the decision taken on 22 July
2009 was taken on the basis of a mistaken view as to what had been
decided on 5 July 2008. The applicant submitted that the JSC in any event
had to afford the parties to the complaint and counter-complaint a hearing
before reversing its earlier decision whatever it may have been. I will
assume without deciding that the parties should have been afforded a
hearing before the decision was taken. However, although the judges of
the Constitutional Court indicated that they were reserving their rights
they did not take the matter any further but attended the interviews
conducted by the sub-committee as did Hlophe JP. The parties concerned,
therefore, accepted the decision of the JSC. In these circumstances it is
not for the applicant, an outsider to the proceedings, to complain about
the JSC‟s failure to give them a hearing.

The decision to dismiss the complaint
[30] The JSC decided to dismiss the complaint and the counter-
complaint because the majority of its members were of the view that the
evidence of Nkabinde J and Jafta AJ, together with that of Hlophe JP did
not establish and, at a formal enquiry, could not establish that Hlophe JP
had attempted to improperly persuade them to decide the cases in Mr
Zuma‟s favour.

[31] At the hearing in April 2009 the complainants‟ evidence was not
tested by cross-examination as Hlophe JP and his legal representatives
were not present or represented. The interviews conducted on 30 July
2009 were, as submitted by the applicants, brief and perfunctory. They
consisted of the confirmation of the correctness of the evidence given at
the hearing in April 2009 and questions by the three members of the sub-
committee. No cross-examination was allowed. The JSC was therefore

confronted with the untested evidence of Jafta AJ and Nkabinde J on the
one hand and the untested evidence of Hlophe JP on the other hand.

[32] The evidence of Jafta AJ  in so far as it is relevant to the question
whether Hlophe JP attempted to influence the Constitutional Court‟s
pending judgment in the Zuma cases was that Hlophe JP made an
appointment to visit him in his chambers at the Constitutional Court.
During their meeting Hlophe JP initiated a discussion about the Zuma
matters. He, inter alia, said that: (a) the matters had to be looked at
properly because he believed that Mr Zuma was being persecuted just
like he, Hlophe JP, had been; (b) the SCA had got it wrong in its
judgment; and (c) „sesithembele kinina‟ meaning „we pin our hopes on
you‟ and understood by Jafta AJ to mean „you are our last hope‟.
Although he did not at the time think that Hlophe JP was trying to
influence him, Jafta AJ did think that Hlophe JP „was wishing for a
decision which would favour Mr Zuma because the SCA had found
against Mr Zuma and Thint‟. Jafta AJ then terminated the discussion by
saying that the matter would be decided on its facts and according to the
law.

[33] Some four weeks later, when Jafta AJ learnt that Hlophe JP had
made an appointment to see Nkabinde J, he told her that Hlophe JP might
want to discuss the Zuma matters with her as he earlier had done so with
him. It was then that Jafta AJ formed the view that Hlophe JP had
attempted to influence him. Asked whether he accepted that Hlophe JP
might not have been attempting to influence him he answered that one
can only work on an inference and that he „would not know what
intention he had‟. He confirmed that he and Hlophe JP were friends but
stated that they had not met since 2003.

[34] Nkabinde J‟s evidence in so far as it is relevant to the question
whether Hlophe JP attempted to influence the Constitutional Court‟s
pending judgment in the Zuma cases was that Hlophe JP telephonically
made an appointment to visit her in her chambers. When he made the
appointment Hlophe JP told her that he had a mandate and that they could
talk about privilege. During the visit to her chambers Hlophe JP said that
the reason why he was there was, among other things, that „a concern had
been raised that people who are appointed at the Constitutional Court
should understand our history‟. Asked who those people were he said that
„he has connection with some ministers whom he from time to time
advised‟. He then started talking about the Zuma case and said that it was
an important case and that the issue of privilege was also important. It
had to be decided properly because the prosecution case rested on that
aspect of the case. Having been warned by Jafta AJ that Hlophe JP might
want to talk about the case of Mr Zuma she „snapped‟ and said „my
brother, you know that you cannot talk about this case. You have not
been involved in the case, you have not sat on it and you are not a
member of the Court to come and talk about the case‟. His response was
that he did not mean to interfere with her work but he went on to explain
„that the point is that there is no case against Mr Zuma.‟ He went further
and said „Mr Zuma has been persecuted, just as he was persecuted‟. He
stated that there was a list containing names of people who were also
implicated in the arms deal. He had obtained the list from the National
Intelligence and said something to the effect that some of the people who
appeared in the list were going to lose their jobs when Mr Zuma became
President. She was adamant that Hlophe JP visited her to discuss the
Zuma case and nothing else.

[35] Nkabinde J denied Hlophe JP‟s version that she initiated the
discussion about privilege and that she told Hlophe JP that she was busy
writing a note about privilege. She said that she could not have done so as
the note had long since been written. Asked whether it was possible that
Hlophe JP had not tried to influence her she said that she did not know
what his intentions were.

[36] Hlophe JP, during his interview by the members of the sub-
committee, denied that he asked Jafta AJ whether or not the judgment in
the Zuma matters had been handed down and said that he knew that that
was not the case. He denied that he said that Mr Zuma was persecuted
just like him, in the context mentioned by Jafta AJ and claimed that that
was said in the context of a discussion about himself and the Western
Cape. He admitted that he said that the matters should be properly
decided but claimed that it was not said in the context of Mr Zuma being
persecuted but in the context of the uncertainty created by the SCA
judgment. He did not think that he said that the SCA got it wrong but did
express concerns about the judgment. He also denied that he said
„sesithembele kinina‟ in the context alleged by Jafta AJ and claimed that
he used the phrase by way of encouragement when he left, some time
after the discussion of the Zuma matters.

[37] Hlophe JP denied that during his telephonic discussion with
Nkabinde J he could have said that he had a mandate and said that the
word mandate was used by him in the context of a mandate having been
given to him by the Chief Justice to chair a Local Organising Committee.
He also denied that he initiated the discussion about privilege, and that he
said: (a) that the reason why he was there was that a concern had been
raised that people in the Constitutional Court should understand our

history; (b) that he had political connections; (c) that the issue of privilege
should be decided properly because the prosecution‟s case rested on it.
Finally he denied: (a) that Nkabinde J rebuffed him when he started
talking about the Zuma case; (b) that they ever spoke about the facts in
the Zuma matter; (c) that he expressed an opinion about the strength of
the Zuma case; (d) that he spoke about a list obtained from National
Intelligence; and (e) that he said that some of the people whose names
were on the list could lose their jobs.

[38] Hlophe JP‟s version, on the other hand, was that he and Nkabinde J
started talking about the Zuma matter when he noticed the Zuma files in
her chambers and asked when judgment was going to be delivered.
According to him he did say that the issue of privilege was an important
one for a trial lawyer and also that he said that Mr Zuma was being
persecuted but denied that the latter statement was made in the context
alleged. He claimed that the statement was made when he was asked how
he was doing in the Western Cape to which he replied that he was like
Zuma, people will always find something wrong with him.

[39] Jafta AJ and Nkabinde J did not at their interviews deviate from
their earlier evidence at the enquiry held in April 2009. Standing on its
own there was no reason not to believe their evidence. Consequently,
without having tested the evidence of Hlophe JP, the JSC had no basis for
rejecting the evidence of Nkabinde J and Jafta AJ and did not do so. For
the purposes of its decisions the JSC accepted that Hlophe JP probably
said what he is alleged to have said.

[40] All the aforementioned evidence of Jafta AJ and Nkabinde J
relating to their meetings with Hlophe JP is clearly relevant to the

question whether he attempted to influence the Constitutional Court‟s
pending judgment in the Zuma/Thint matters. Both Nkabinde J and Jafta
AJ, on the strength of that evidence, drew the inference that he did
attempt to do so.

[41] The JSC concluded that the evidence of Jafta AJ standing alone
was not sufficient to establish that Hlophe JP attempted to improperly
influence him to decide the Zuma/Thint matters in a particular way. In
regard to the evidence of Nkabinde J the JSC pointed out that there were
contradictions between her evidence and that of Hlophe JP and said that
the question arose whether her evidence was material. Dealing with this
issue the JSC said that the evidence contradicted by Hlophe JP did not
appear to have a material bearing on the central question that it was
required to consider namely „did Hlophe JP attempt to improperly
influence Nkabinde J to give judgment in a particular way against her
conscience or better judgment‟.

[42] This finding by the JSC is irrational. Hlophe JP contradicted almost
everything that Nkabinde J said. It follows that the JSC considered
virtually everything that Nkabinde J said ie virtually everything on the
strength of which she drew the inference that Hlophe JP tried to influence
her, to be immaterial in respect of the question whether he tried to
influence her. It cannot conceivably, rationally be considered to be
immaterial to the question whether Hlophe JP tried to influence Nkabinde
J that Hlophe JP said, when making an appointment to see her, that he
had a mandate, that, when he visited her, he said that the reason why he
was there was that a concern had been raised that people in the
Constitutional Court did not understand our history, that he said, when
asked who those people were, that „he has connection with some

ministers‟, that he said that the question of privilege should be decided
properly because the prosecution‟s case rested on it, that Nkabinde J
reprimanded him for speaking about a case he was not involved in, that
he said that there was no case against Mr Zuma and that Mr Zuma was
being persecuted, that he said that some of the people implicated in the
arms deal whose names appeared on a list he had obtained from National
Intelligence were going to lose their jobs when Mr Zuma became
President. These were the facts which the JSC had to consider together
with Jafta AJ‟s evidence, to determine whether Hlophe JP attempted to
influence them. Once it had been determined that he did attempt to
influence them the JSC had to decide whether his attempt to do so
constituted gross misconduct of such a nature that it may justify his
removal from office.

[43] The JSC nevertheless concluded:
„The CJ‟s statement says what was communicated to Jafta JA was that the matters
must be decided in favour of Mr Zuma. That is not what Jafta JA said in his evidence.
As pointed out, at best, he said he had made that inference. On a proper analysis of
her evidence, this is what Nkabinde J also said. Having regard to the totality of the
facts and the context, we do not accept that that is the only reasonable inference to be
drawn. We cannot reject Hlophe JP‟s contention that he did not attempt to improperly
attempt to influence the two judges to decide the cases in Mr Zuma‟s favour.‟

[44] The JSC therefore came to the conclusion that there are two
possibilities. The one being that Hlophe JP attempted to influence the two
judges as alleged by them and the other being that he did not attempt to
do so as alleged by him. It did not decide that it was more probable that
Hlophe JP had not attempted to influence the two judges and, therefore,
must have dismissed the complaint simply on the basis of another
innocent possibility. It follows that it applied the criminal standard

applicable at the end of a criminal trial, namely proof beyond reasonable
doubt, to dismiss the complaint, at a stage when neither of the conflicting
versions of the two judges on the one hand and Hlophe JP on the other
hand had been tested by cross-examination.

[45] The finding that it could not reject Hlophe JP‟s version is quite
correct. By disallowing cross-examination that result was made
inevitable. It would have been highly irregular to reject his evidence
without having given him an opportunity to cross-examine his accusers.
Utilising this procedure for the final resolution of a complaint of
misconduct by a judge will always lead to a dismissal of the dispute
where the conduct alleged by the accuser is disputed by the judge because
the judge‟s version can never be rejected without having given him an
opportunity to cross-examine his accusers. The procedure adopted was
therefore not appropriate for the final determination of the complaint.

[46]  The requirement of proof beyond reasonable doubt (the only
reasonable inference) was similarly not appropriate. Not even in a
criminal trial is proof beyond reasonable doubt required before the trial
has run its course and an investigation of a complaint of gross misconduct
is not a criminal enquiry but more in the nature of a disciplinary enquiry
where proof on a balance of probabilities is required at its conclusion.8

[47] The JSC purported to justify their decision to dismiss the complaint
without proceeding to a formal enquiry by saying that cross-examination
would serve no purpose.  It advanced a number of reasons in support of
its view. These are their reasons: First, it would be naïve to believe that

8 Olivier v Die Kaapse Balieraad 1972 (3) SA 485 (A) at 495 in fine to 496H.

Hlophe JP would not persist in his denial that he had the intention to
influence the two judges. It must also be realistically be accepted, they
said, that he would adopt the same stance in respect of his claimed links
with the National Intelligence and the other matters on which there are
sharp disputes of fact. Second, there are factors that support Hlophe JP‟s
version that he did not try to influence the two judges. They are: (i) One
would have expected him to follow up had he tried to influence them; (ii)
There is no evidence that he attempted to influence other judges of the
Constitutional Court; (iii) The Zuma/Thint matters were heard by a panel
of ten judges and the decisions in the Constitutional Court are taken by a
majority; (iv) Jafta AJ did not find it sufficiently concerning to make
anything of his discussion with Hlophe JP until Nkabinde informed him
that she was going to meet with Hlophe JP; (v) Nkabinde J did not raise
the alarm about the conduct of Hlophe JP until nearly two weeks later;
(vi) Jafta AJ and Nkabinde J did not complain in their individual
capacities. Third, Nkabinde J reported what Hlophe JP had said to Langa
CJ and Mokgoro J and confirmed the statement submitted by Langa CJ to
the JSC in support of the complaint but there are discrepancies as to the
point in time it is alleged that he said that he had a mandate. Fourth,
similar considerations obtain in respect of other matters which are not
identified. Fifth, Hlophe JP did not know that the judges of the
Constitutional Court did not discuss matters with other judges who were
not involved in the particular matters.

[48] I find the reasoning surprising. Courts frequently have to decide
where the truth lies between two conflicting versions. They often do so
where there is only the word of one witness against another and neither of
the witnesses concedes the version of the other.  Civil cases are decided
on a balance of probabilities but where there is a dispute of fact it is

rarely possible to do so without subjecting the parties to cross-
examination and without allowing them to test what are alleged to be
probabilities in the other parties‟ favour. A court may of course after
cross-examination still be unable to decide where the truth lies. That
possibility does not entitle a court to decide the matter without allowing
cross-examination and it does not entitle the JSC to do so.

[49] As stated above, in terms of s 165(4) of the Constitution organs of
state, through legislative and other measures, must assist and protect the
courts to ensure the independence, impartiality, dignity, accessibility and
effectiveness of the courts and in terms of s 177(1) a judge cannot be
removed from office for having made himself guilty of misconduct unless
the JSC has found him guilty of misconduct. It follows that there is a duty
on the JSC to investigate allegations of misconduct that may threaten the
independence, impartiality, dignity, accessibility and effectiveness of the
courts.

[50] Any attempt by an outsider to improperly influence a pending
judgment of a court constitutes a threat to the independence, impartiality,
dignity and effectiveness of that court. In the present case the allegation is
that Hlophe JP attempted to improperly influence the Constitutional
Court‟s pending judgment in one or more cases. The JSC had already,
when it decided to conduct the interviews with the judges decided that if
Hlophe JP had indeed attempted to do so he would have made himself
guilty of gross misconduct which, prima facie, may justify his removal
from office. Moreover, it based its decision dismissing the complaint on
an acceptance that Hlophe JP probably said what he is alleged to have
said.  In these circumstances the decision by the JSC to dismiss the
complaint on the basis of a procedure inappropriate for the final

determination of the complaint and on the basis that cross-examination
would not take the matter any further constituted an abdication of its
constitutional duty to investigate the complaint properly. The dismissal of
the complaint was therefore unlawful. In addition, the JSC‟s decision to
dismiss the complaint constituted administrative action and is reviewable
in terms of s 6(h) of PAJA for being unreasonable in that there was no
reasonable basis for it.

The decision to dismiss the counter-complaint
[51] Concerning the counter-complaint Jafta AJ and Nkabinde J
explained that they willingly participated in the collective complaint and
the statement filed in support of that complaint but that they did not want
to be individual complainants. For that reason, when called upon by the
JSC to file statements, they issued the statement that they were not
complainants and that they did not intend filing statements as
complainants. They were in fact, at the time when they issued their
statement, collaborating in the preparation of a collective statement that
was issued shortly thereafter.

[52] Hlophe JP made it clear at the interview that he had no complaint
in so far as the Constitutional Court judges were exercising their right to
report him to the JSC. He conceded further that he had to accept the
version of the Constitutional Court judges as to how it came about that
the complaint was lodged with the JSC. He accepted the statement by the
Constitutional Court judges that their conduct „was inspired by their
desire to protect the institutional integrity or the constitutional integrity of
the court.‟ His complaint was that they made the complaint public by
releasing a media statement to journalists including the Mail and
Guardian and to the Democratic Party which caused him to draw the

inference that they were actuated by political considerations and indicated
to him that they were trying to get rid of him.

[53] Moseneke DCJ told the sub-committee that the judges of the
Constitutional Court believed what they were told by their colleagues
Nkabinde J and Jafta AJ and that they were satisfied that there was a
complaint that should be placed in the hands of the JSC. The judges
collectively considered that the independence of the Constitutional Court
was being threatened and that they were duty-bound to let the public
know that a complaint had been lodged with the JSC „in order to protect
the integrity of the judicial process . . . which would otherwise have been
dogged by rumour‟. He explained that the court had a mailing list and
anybody could apply to have his name placed on the mailing list. Once
the decision had been taken to release a statement the registrar would
have disseminated the statement to whoever‟s name appeared on the
mailing list. He denied that any pressure had been brought to bear on
Nkabinde J and Jafta AJ to be parties to the collective complaint. Langa
CJ‟s evidence was to the same effect.

[54] The JSC pointed out that the Supreme Court of Appeal had already
held that what the judges of the Constitutional Court had done was
lawful.9 It stated that the publication of the complaint might have been an
infringement of the principle of collegiality or comity among judges or
some ethical principle but that it could not amount to gross misconduct.
Although it might have been unwise to publish the media statement there

9 See Langa CJ & others v Hlophe JP 2009 (4) SA 362 (SCA) in which this court, in respect of an
earlier application by Hlophe JP, held that the filing of the complaint by the Constitutional Court
judges and the making of a public statement that they had done so, before he had been given a hearing,
was not unlawful.

was in its view no reasonable possibility that the JSC would at the
conclusion of a formal enquiry find that the Constitutional Court judges
made themselves guilty of gross misconduct. Hlophe JP‟s allegations
against the judges of undue pressure on Nkabinde J and Jafta AJ to act
contrary to their conscience, of the concealment of the complete and true
facts, of acting with an ulterior motive and of masterminding leaks to the
media in a well orchestrated media campaign were according to the JSC
as unfortunate as they were incapable of establishment on the evidence
before them. They concluded:
„It is clear from the evidence of Hlophe JP to the sub-committee that he based his
allegations almost entirely on conclusions and inferences that he drew from what they
had said and done on various occasions. The CJ and DCJ emphatically deny the
conclusions and inferences. We accept the denials.
. . .
In the result, there is no basis for finding that any of the Judges of the CC is guilty of
gross misconduct.‟

[55] Unlike in the case of the complaint there was no evidence
contradicting the evidence of the Constitutional Court judges on the basis
of which the allegations against them could be established. The JSC was
therefore entitled to dismiss the counter-complaint on the basis that the
allegations were incapable of establishment.

[56] In his submissions to the JSC Hlophe JP did not call for a formal
hearing but submitted „that the JSC should determine the counter-
complaint on the material already before it‟.

[57] One of the prayers in the applicant‟s notice of motion is that the
decision of the JSC in relation to the counter-complaint be set aside.
Counsel for the applicant, however, initially did not address this issue at

all. When asked whether the applicant was persisting with its request for
this relief counsel for the applicant confirmed that it was but the only
submission they made in support thereof was that they thought that the
complaint and counter-complaint went hand in hand. None of the other
parties advanced another reason for reviewing the JSC‟s decision in
respect of the counter-complaint. No reason was advanced as to why it
was thought that the two complaints could not be separated and I can see
no reason why the JSC was not entitled to dismiss the counter-complaint
if it was satisfied, as it said it was, that there was no evidence to support
it.

The Remedy
[58] Apart from asking for an order that leave to appeal be granted and
that leave to cross-appeal be refused the applicant asked for an order that
the appeal be upheld and that the order of the high court be set aside and
replaced with an order in terms of prayers 1.2 to 1.7 of the applicant‟s
notice of motion, namely:
„1.2 The decision of the JSC at its meeting on 20 to 22 July 2009, to reverse its earlier
decision to hold a formal enquiry into the complaints and to hold a preliminary
enquiry instead, is reviewed and set aside.
1.3 The decision of the JSC at its meeting on 15 August 2009, “that the evidence in
respect of the complaint does not justify a finding that Hlophe JP is guilty of gross
misconduct” and that the matter is accordingly “treated as finalised”, is reviewed and
set aside .
1.4 The decision of the JSC at its meeting on 15 August 2009, “that the evidence in
support of the counter-complaint does not support a finding that the judges of the
Constitutional Court are guilty of gross misconduct” and that the matter is accordingly
“treated as finalised”, is reviewed and set aside.
1.5 The decision of the JSC at its meeting on 15 August 2009, “that none of the
judges against whom complaints had been lodged is guilty of gross misconduct”, is
reviewed and set aside.

1.6 The JSC is ordered to hold a formal enquiry into the complaints in terms of rule 5
of its Rules Governing Complaints and Enquiries in terms of section 177(1)(a).
1.7 The JSC and any respondent who opposes this review, if any, are ordered jointly
and severally to pay the applicant‟s costs.‟

For the above reasons the applicant is not entitled to an order in terms of
1.2, 1.4, 1.5 and 1.6.

[59] The JSC as well as Hlophe JP submitted that the court has a
discretion not to review and set aside the decision of the JSC to terminate
the enquiry. In this regard they relied on s 172(1) of the Constitution and
s 8 of PAJA. Section 172(1) provides that when deciding a constitutional
matter a court must declare that any conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency and make any
order that is just and equitable, including an order limiting the
retrospective effect of the declaration of invalidity and an order
suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect. Section
8 of PAJA provides that a court, in proceedings for judicial review in
terms of s 6(1), may grant any order which is just and equitable.

[60] Counsel representing Hlophe JP sought to find support for their
submission in the decision of the Constitutional Court in J T Publishing
(Pty) Ltd & another v Minister of Safety and Security & others 1997 (3)
SA 514 (CC) para 15 to the effect that the fact that a court is enjoined to
declare a law that is inconsistent with the Constitution invalid to the
extent of its inconsistency does not mean that a court is „compelled to
determine the anterior issue of its inconsistency when, owing to its
wholly abstract, academic or hypothetical nature should it have such in a

given case, our going into it can produce no concrete or tangible result,
indeed none whatsoever beyond the bare declaration‟. They also referred
to Islamic Unity Convention v Independent Broadcasting Authority &
others 2002 (4) SA 294 (CC) para 10-12 in which the Constitutional
Court reaffirmed the statement in J T Publishing and stated that a court
should not ordinarily decide a constitutional issue unless it is necessary to
do so and that it should not decide a constitutional issue that is moot.

[61] In this case the applicant raised a constitutional issue which cannot
be said to be of an abstract, academic or hypothetical nature or one that
cannot produce a tangible result. It was therefore necessary to decide the
issue. In light of our determination that the JSC‟s decision to dismiss the
complaint was inconsistent with the Constitution we are obliged to
declare the decision invalid.

[62] I shall assume that the high court nevertheless had a discretion to
order that the enquiry into the alleged misconduct of Hlophe JP be
terminated. The respondents submitted that it should have done so
because:
(i) Both the Constitutional Court judges and Hlophe JP have accepted that
the complaints have been finalised. Their attitude is based upon a
recognition of the fact that it is in the interests of the judiciary, the legal
system and the country as a whole that this unhappy series of events in
our history be regarded as finalised.
(ii) The costs of re-opening the enquiries in these circumstances are
unjustifiable.
(iii) Considerations of public interest require that there should be finality
on a matter which has continued for so long without any definitive
resolution.

[63] There is no evidence that the Constitutional Court judges consider
it in the interests of justice, the interests of the judiciary, the legal system
and the country that the matter should be regarded as finalised. It is
alleged that a very high ranking judge, the head of one of the biggest
divisions of the high court, attempted to influence two of the judges of
another court to decide a matter in a particular way. The allegation was
considered to be so serious as to constitute gross misconduct which if
established may justify the removal of the judge from office. It cannot be
in the interests of the judiciary, the legal system, the country or the public
to sweep the allegation under the carpet because it is being denied by the
accused judge, or because an investigation will be expensive, or because
the matter has continued for a long time.

[64] Professor Kader Asmal was allowed to join the proceedings as an
amicus curiae in which capacity he submitted heads of argument. We
appreciate his assistance. In light of the fact that all the parties were well
represented we do not think that it is appropriate to make any cost order
in his favour.

Order
[65] For these reasons the following order is made:
Leave to appeal with costs including the costs of three counsel is
granted to the applicant.
Leave to cross-appeal is refused with costs including the costs of
three counsel.
The appeal is upheld with costs including the costs of three
counsel.

The order by the High Court is set aside and replaced with the
following order:

„1
The decision of the Judicial Service Commission at its
meeting on 15 August 2009, “that the evidence in respect of the
complaint does not justify a finding that Hlophe JP is guilty of gross
misconduct” and that the matter accordingly be “treated as finalised”, is
reviewed and set aside.

The first and second respondents on the one hand and the
sixteenth respondent on the other hand are ordered jointly and severally
to pay the applicant‟s costs.‟

_________________
P E STREICHER
JUDGE OF APPEAL

APPEARANCES:

For appellant:
W Trengove SC

T Bruinders SC

N Fourie

L Sisilana

B Macola

Instructed by:

Bowman Gilfillan, Johannesburg

McIntyre & Van der Post, Bloemfontein

For 1st & 2nd respondents: I V Maleka SC

B Vally SC

L Gcabashe

M Sello

Instructed by:

The State Attorney, Cape Town

The State Attorney, Bloemfontein

For 16th respondent:
J Newdigate SC

V Ngalwana

T Masuku

Instructed by:

Xulu Liversage Inc, Cape Town

Lovius Block, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 March 2011
Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.
* * *

FREEDOM UNDER LAW v THE ACTING CHAIRPERSON: JUDICIAL
SERVICE COMMISSION & OTHERS

The Supreme Court of Appeal today upheld an appeal against a judgment of the North
Gauteng High Court, Pretoria in terms of which the High Court dismissed an
application for the setting aside of the dismissal by the Judicial Service Commission
of a complaint by thirteen judges of the Constitutional Court against Judge Hlophe the
Judge President of the Western Cape High Court, Cape Town and of a counter-
complaint by Hlophe JP against the judges of the Constitutional Court.

The complaint of the judges of the Constitutional Court was that Hlophe JP had
approached two of the judges of the Constitutional Court and had attempted to
improperly influence the court’s pending judgment in the Zuma/Thint matters. Hlophe
JP’s counter-complaint was that the Constitutional Court judges had undermined the
Constitution by making a public statement in which they sought to activate a

procedure for his removal for alleged improper conduct, before properly filing a
complaint with the JSC and of having violated his rights to dignity, privacy, equality,
procedural fairness and access to courts by filing their complaint even before they had
heard his version of the events. He subsequently accused the constitutional court
judges of having been motivated by ulterior motives.

In an earlier decision of the SCA it had been held that the filing of the complaint and
the publication of the complaint by the judges of the Constitutional Court without
having given Hlophe JP a hearing was not unlawful but Hlophe JP persisted with the
counter-complaint on the basis that the judges had acted with an ulterior motive.

The JSC decided that in view of the conflict of fact on the papers placed before it, it
was necessary to refer both the complaint and the counter-complaint to the hearing of
oral evidence. After a second application by Hlophe JP for postponement of the
hearing due to ill-health had been refused, the JSC proceeded to hear the oral
evidence of judges of the Constitutional Court in his absence. These proceedings were
however set aside on application by Hlophe JP to the South Gauteng High Court,
Johannesburg.

The JSC, the composition of which had changed, reconsidered its decision to refer the
disputes of fact to oral evidence. They decided that the allegations made in the
complaint and counter-complaint, if established, would amount to gross-misconduct
and appointed a sub-committee to investigate the complaints by conducting
interviews.

Having conducted the interviews at which no cross-examination was allowed, the sub-
committee recommended to the JSC that fresh deliberations in respect of the
complaint and the counter-complaint be held in the light of the proceedings before
them.

The JSC thereupon reconsidered the matter and dismissed the complaint as well as the
counter-complaint. The complaint was dismissed for the following reasons:  (a) the
evidence of the two judges of the Constitutional Court, Nkabinde J and Jafta AJ, was
based on an inference that Hlophe JP communicated to them that the Zuma/Thint

matters must be decided in Mr Zuma’s favour; (b) on the totality of the facts and the
context, it was not satisfied that that was the only inference to be drawn; (c) the
evidence of Hlophe JP that he did not attempt to improperly influence the two judges
to decide the cases in Mr Zuma’s favour could not be rejected; and (c) to embark on a
formal enquiry with cross-examination would serve no purpose. The counter-
complaint was dismissed on the basis of an acceptance of the evidence of the
Constitutional Court judges.

The High Court dismissed an application for the setting aside of the JSC’s decision.
On appeal the SCA held that (a) the procedure adopted by the JSC was inappropriate
for the final determination of the complaint against Hlophe JP; (b) that the decision by
the JSC to dismiss the complaint on the basis of a procedure inappropriate for the
final determination of the complaint and on the basis that cross-examination would
not take the matter any further constituted an abdication of the JSC’s constitutional
duty to investigate the complaint properly; and (c) that the dismissal of the complaint
was therefore unlawful.  The SCA held furthermore that the decision to dismiss the
complaint constituted administrative action and was reviewable for being
unreasonable in that there was no reasonable basis for it.

The SCA dismissed the appeal in so far as it related to the JSC’s dismissal of the
counter-complaint and held that the JSC was entitled to do so on the basis of
concessions by Hlophe JP that his allegations rested solely on inferences for which he
could proffer no evidence in support. In the event, so the SCA held, the JSC could not
be faulted in their decision to accept the constitutional court judges’ denial that they
were activated by an ulterior motive.