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426 Chapter 19
action. It contained further statements about the seriousness of the conduct;
the democratic values contained in section 1 of the Constitution; the
independence of the judiciary and the prohibition in section 165 of
interference with courts; the judicial oath; that attempts to influence a court
violates the Constitution and threatens the administration of justice; and that
the CC and other courts would not yield to or tolerate attempts to undermine
their independence.
[14] A media release in virtually identical terms soon followed, which was
sent automatically and electronically to all subscribers to the CC’s
information system.
[15] It should be noted at this early stage that (a) the respondent was not
apprised of the allegations or their source; (b) he was not asked for his version
or comments; (c) he received no effective prior notice of the intention to lodge
the complaint; and (d) he was not told of the intention to issue a media
statement. The public, too, was not given any detail and was left with nothing
more than the knowledge that a complaint with serious implications had been
lodged.
Here endeth this excerpt of the SCA’s judgment. The media statement
issued by the judges of the Constitutional Court is given in full in Appendix
A of this paper. In outline, the media statement noted that Hlophe had
‘approached some of the judges of the Constitutional Court in an improper
attempt to influence this Court's pending judgment’ and that the Court had
referred a complaint to the JSC. The statement further noted that the
judges of the Court ‘view conduct of this nature in a very serious light’. The
Court’s final paragraph passed at least implicit judgment by stating: ‘This
court … will not yield to or tolerate unconstitutional, illegal and
inappropriate attempts to undermine their independence or impartiality.’
The first court to judicially consider this sequence of events was the
South Gauteng High Court, acting upon a complaint laid by Hlophe JP
against the conduct of the judges of the Constitutional Court. 6 In a
somewhat convoluted judgment, that court decided in favour of Hlophe JP
and against the judges of the Constitutional Court. 7 The Court was,
however, divided by three judges to two, with the two minority judges
writing separate dissents. As the Supreme Court of Appeal noted, the High
Court panel was ‘unusually though permissibly constituted as a full bench
with five judges …’ 8 Further, while it is arguably not relevant, as several
6 Hlophe v Constitutional Court of South Africa (08/22932) [2008] ZAGPHC 289, [2009] 2
All SA 72 (W).
7 The response of Calland & Oxtoby pushes me to engage further with the rationales of
these High Court judgments. For a brief instance of such, see J Klaaren & G Penfold
‘Just administrative action’ in S Woolman et al Constitutional law of South Africa (2002)
63-14 fn 4. The point made here is that the SCA did what the High Court did not; it
separated out and focused on the precise question of publication of the statement. In so
doing, the SCA considered the matter within the context of openness and public
justification rather than within the context of procedural fairness understood as fairness
to Hlophe JP.
8
Langa v Hlophe (697/08) [2009] ZASCA 36; 2009 4 SA 382 (SCA) (31 March 2009)
para 1. This was per authority of Supreme Court Act 59 of 1959 sec 13(1)(a).