Langa and Others v Hlophe (697/08) [2009] ZASCA 36; [2009] 3 All SA 417 (SCA) ; 2009 (8) BCLR 823 (SCA) (31 March 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2009
>>
[2009] ZASCA 36
|

|

Langa and Others v Hlophe (697/08) [2009] ZASCA 36; [2009] 3 All SA 417 (SCA) ; 2009 (8) BCLR 823 (SCA) (31 March 2009)

Links to summary

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No:
697/08
LANGA CJ,
.................................
First Appellant
MOSENEKE DCJ
.................................
Second Appellant
MADALA J
.................................
Third Appellant
MOKGORO J
.................................
Fourth
Appellant
O’REGAN J
.................................
Fifth Appellant
SACHS J
.................................
Sixth Appellant
NGCOBO
J
.................................
Seventh
Appellant
SKWEYIYA
J
.................................
Eighth Appellant
VAN
DER WESTHUIZEN J
.................................
Ninth Appellant
YACOOB
J
.................................
Tenth Appellant
NKABINDE
J
.................................
Eleventh
Appellant
JAFTA
AJ
.................................
Twelfth
Appellant
KROON
AJ
.................................
Thirteenth
Appellant
and
HLOPHE, MANDLAKAYISE JOHN
.................................
Respondent
Neutral citation:
Langa v
Hlophe
(697/08)
[2009] ZASCA 36
(31 MARCH 2009)
Coram:
HARMS DP, STREICHER,
MTHIYANE, NUGENT, CLOETE, PONNAN, MLAMBO
,
SNYDERS AND MHLANTLA JJA
Heard:
23 MARCH 2009
Delivered:
31
MARCH 2009
Updated:
Summary:
Judge – complaint
of judicial misconduct by other judges – alleged violation of
accused judge’s constitutional rights –
no right to be heard
before complaint filed and media statement issued
ORDER
On appeal from:
High Court of
South Africa (WLD):
Mojapelo
DJP (Moshidi J and Mathopo J concurring and Marais J and Gildenhuys J
dissenting), a Full Bench sitting as a court of first
instance.
The appeal is upheld.
The order of the court below is replaced by an order
dismissing the application.
JUDGMENT
THE COURT:
INTRODUCTION
[1] This is an appeal from a judgment
of the High Court, Johannesburg, relating to a dispute between
Justices of the Constitutional
Court (‘the CC’) and a Judge
President of a high court. The court below was unusually though
permissibly constituted as a full
bench with five judges (Supreme
Court Act 59 of 1959 s 13(1)(a)). The majority (Mojapelo DJP with
Moshidi and Mathopo JJ concurring)
upheld the respondent’s claim
for declaratory orders in part (
Hlophe
v Constitutional Court of South Africa and Others
(08/22932)
[2008] ZAGPHC 289
,
[2009] 2 All SA 72
(W)). Marais J and
Gildenhuys J in separate judgments but for similar reasons disagreed;
they would have dismissed the application.
(References in this
judgment to the high court judgment are to the judgment of the
majority.)
[2] The high court granted the
appellants leave to appeal. The respondent sought leave from the high
court to cross-appeal to the
CC notwithstanding that high courts
(and, for that matter, this court) are not entitled to grant such
leave. He asked, in the alternative,
for leave to cross-appeal to
this court, but that application was fatally defective. In the event
both applications were struck
from the roll.
[3] As a rule this court sits as a
panel of either three or five judges but in view of the importance of
the matter, and taking
into consideration the request of the
appellants, in which the respondent acquiesced, it was directed that
the matter be heard
by a larger panel (s 12(1)(c) of the Act).
[4] At the request of the court Adv
NC Maritz SC and KS Hassim of the Pretoria Bar filed concise heads of
argument as
amici
curiae
. We wish to
express our appreciation for their contribution.
[5] The appellants are the Chief
Justice (
Langa
CJ);
the
Deputy Chief Justice (Moseneke DCJ); eight CC Justices (
Mokgoro
J, O'Regan J, Sachs J, Ngcobo J, Skweyiya J, Van Der Westhuizen J,
Yacoob J, and Nkabinde J);
a recently retired CC Justice (Madala J); and a member of this court
(Jafta AJ) and one of the Eastern Cape High Court (Kroon AJ)
who both
were at the time acting CC judges. The respondent is the Judge
President of the Cape High Court, Judge MJ Hlophe.
[6] The case arose from a complaint
of judicial misconduct laid by the appellants against the respondent
with the Judicial Service
Commission (the JSC) on 30 May 2008. The
respondent laid a counter-complaint against the appellants on 10
June. While these matters
were pending (and they still are) the
respondent launched the subject application for an order declaring,
in essence, that the
CC had violated certain of his constitutional
rights by laying the complaint and by issuing a media release stating
that the complaint
had been laid.
[7] The backdrop against which this case arose no doubt
raises matters of public importance wherever the truth on those
matters
lies. But it needs to be said at the outset that those
matters lie for examination and consideration in another forum,
namely
the JSC, and they are only peripherally relevant to this case.
This appeal is confined instead to two narrow questions of law
relating to alleged violations of the Constitution. The first is
whether the appellants, as judges of the CC, were obliged in law
to
afford the respondent, because he is a judge, a hearing prior to
laying the complaint against him before the JSC. And the second
is
whether, having lodged the complaint, they were obliged in law to
keep that fact confidential. The circumstances in which those
two
questions arise appear later in this judgment. This judgment
accordingly is not concerned with the merit of of the complaints
to
the JSC.
[8] Two of the respondents in the
court below are no longer parties to the litigation. The one is the
CC as an institution. The
thrust of the respondent’s substantive
application was for an order declaring that the appellants had acted
institutionally (‘as
a Court’) and ‘not merely as an assortment
of individual judges’ and, in that capacity, had violated his
rights. The high
court found that the appellants had not acted as an
institution but as a group of persons who were coincidentally judges
and that
the respondent’s application was in that regard
misconceived. As a result the court refused to make an order
implicating the
CC itself and dismissed the application
pro
tanto
.
[9] The other party in the high court
that does not feature in this appeal is the JSC. The relief sought
against the JSC was for
a temporary interdict, which became moot, and
the JSC has no further legal interest in the appeal.
THE SEQUENCE OF EVENTS
[10] During March 2008, the CC heard
the Thint/Zuma appeals from this court. They were of public interest
and importance since they
concerned the prosecution of a high-ranking
politician, Mr Jacob Zuma, on a number of counts. One of the issues
related to legal
privilege. The CC reserved judgment. It was
ultimately delivered after the events that feature in this judgment
and was reported
as
Thint (Pty) Ltd v
National Director of Public Prosecutions and Others; Zuma and Another
v National Director of Public Prosecutions
and Others
[2008] ZACC 13
;
2008 (2) SACR 421
(CC);
2009 (1) SA 1
(CC).
[11] Towards the end of that month
the respondent visited Jafta AJ who concluded that the respondent had
attempted to influence
him to find in favour of Mr Zuma. Knowing that
the respondent intended to visit Nkabinde J, he warned her of the
possibility that
the respondent might repeat his attempt.
[
12] The
anticipated visit to Nkabinde J took place on 25 April, and she, too,
concluded that the respondent had sought to influence
her. At the
beginning of May and soon after the court term began Nkabinde J made
a report to another appellant and through her
the matter was taken up
with other members of the court. They met in the absence of two
appellants, discussed the subject, and
eventually agreed to lodge a
complaint of judicial misconduct against the respondent with the JSC
based on the information provided
by the two Justices. This was done
on 30 May.
[13] The gravamen of the complaint
was in these terms:
‘
A
complaint that the Judge President of the Cape High Court, 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 is hereby submitted by the judges
of this Court to
the Judicial Service Commission, as the constitutionally appointed
body to deal with complaints of judicial misconduct.’
The
document identified the case involved and stressed that there was no
suggestion that any litigant was aware of or had instigated
the
respondent’s action. It contained further statements about the
seriousness of the conduct; the democratic values contained
in s 1 of
the Constitution; the independence of the judiciary and the
prohibition in s 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.
[16] The JSC held an urgent meeting
on 6 June to discuss the matter but due to the lack of information it
put the appellants on
terms to flesh out the complaint. The
respondent, as mentioned, launched his counter-offensive on 10 June,
charging the appellants
with violating his rights by releasing a
public statement about his alleged improper conduct before filing a
proper (factual) complaint
with the JSC. This, he said, violated his
constitutional rights – the same rights implicated in the
application before the high
court and to which we shall revert.
[17] The two Justices responded to
the request of the JSC by stating that they had not lodged a
complaint; that they did not intend
to do so; and that they were not
willing to make statements about the matter. However, the affidavit
of the Chief Justice, which
they in turn confirmed under oath, stated
that the two Justices always considered themselves to have been part
of a collective
complaint on 30 May and not as individual
complainants. They soon afterwards indirectly confirmed their
accounts of what had occurred
by agreeing that their version as
related by the Chief Justice was correct.
[18] In reaction to press reports the
attorneys for Mr Zuma wrote a letter to the Chief Justice expressing
concern about the matter
and on 23 June he issued a practice
direction in the Thint/Zuma case drawing the attention of the parties
to the fact that a complaint
had been lodged; informing them that the
submissions filed were available from the JSC; and inviting the
parties to make any consequent
submissions. Nothing much eventuated.
[19] On 4 July, the first appellant
submitted the response to the JSC of the appellants to the
counter-complaint. It, too, set out
the allegations of the two
Justices involved, and they again subscribed thereto.
THE APPLICATION TO THE HIGH COURT
[20] The respondent’s case was
premised entirely on the allegation that the appellants had acted
together institutionally (what
the respondent called acting ‘as a
court’) when they laid the complaint and issued the statement. As
he put it in his founding
affidavit, the appellants had done so ‘
as
the Court
and not merely as an
assortment of individual judges’ (underlining in the original)
‘without affording me an opportunity to
reply to the allegations of
the judges concerned.’ He added:
‘
The question that arises is
of a purely legal nature and has to do with whether or not it was
lawful for the judges of the Constitutional
Court, acting as a Court,
to cause untested allegations of gross misconduct against me to be
published in the media only on the
basis of ex parte representations
made to them by some of the judges of the Court, who had already
indicated that they do not wish
to complain against me.’
[
21] The
affidavits say more: The respondent was aggrieved by the manner in
which the appellants treated the complaint against him.
He felt that
the appellants had violated the institution of the judiciary and
undermined the judicial office, particularly his.
He pointed out that
the two Justices had not given their version to all their colleagues;
that their version was never put in their
own terms, and that they
appear to have been unwilling complainants and witnesses. The
complaint and the press release were in
the name of all the CC judges
– also those who had no personal knowledge of the matter – and
this, he said, per se condemned
him in the eyes of members of the
public and the profession. In the result an ‘institutional’ bias
had developed that made
it unlikely that an unbiased bench of judges
or academics could be constituted to hear his case.
THE FUNCTIONS OF THE JSC
[22] Under s 177 of the Constitution matters relating to
gross misconduct of judges must be dealt with by the JSC. If the JSC
makes
a finding of gross misconduct and the National Assembly by a
two-thirds majority calls for the removal from office of the judge

concerned, the President must comply. That means that once a
complaint of that kind has been laid against a judge the JSC must

conduct the necessary inquiry and come to a finding.
[23] The JSC is under the Constitution the forum for
deciding whether or not a judge is guilty of gross misconduct. Such a
conclusion
presupposes a finding that the judge committed the conduct
complained of, which may involve factual or legal findings. The JSC
may find that the complaint is without merit and summarily dismiss
it. If it has merit, two value judgments follow: did the conduct

amount to misconduct and, if so, was it gross? If it finds that the
judge was guilty of misconduct which was not ‘gross’ that
ends
the matter. If, however, it finds that the misconduct was gross,
impeachment proceedings follow.
[24] The JSC has procedural rules for dealing with
complaints. These are exhaustive and there is no suggestion that they
do not
afford the right to a fair hearing to the judge. The procedure
begins with the receipt of a complaint ‘from any source’ and,

although it may require the complaint to be on oath, the JSC is
entitled to act on any complaint, whether on oath, in writing or

oral. The rules provide that the JSC may permit the media and the
public, subject to such restrictions as may be considered
appropriate,
‘to attend any enquiry unless good cause is shown for
their exclusion’.
[25] The respondent’s complaint against the
appellants before the JSC, as mentioned before, is repeated in the
notice of motion
and founding affidavit: the appellants violated his
constitutional rights to dignity, privacy, equality and so forth. He
made it
clear that the object of the application was to obtain a
finding that the entire process before the JSC was tainted and that
his
only remedy was a dismissal of the complaint. He said that if the
court were to find that the CC had unreasonably and unjustifiably

violated his rights under the Bill of Rights or that the CC had
abandoned its judicial functions ‘then that will be the end of
the
complaint against me’. In reply he pointed out that a process
vitiated by illegality cannot be cured by ‘scrupulous attention
to
considerations of legality at a hearing on the merits’ and that he
was not prepared to subject himself to a process which
he believed
was vitiated by illegality and unconstitutionality.
[26] The appellants submitted that the high court had
usurped the constitutionally imposed function of the JSC to decide
the issue
and had thereby failed to have regard to the separation of
powers inherent in the Constitution. In the light of the way the case

unfolded it is unnecessary to consider this argument.
DECLARATORY ORDERS
[27] In terms of s 38(a) of the Constitution any person
acting in his or her interest has the right to approach a competent
court
on the ground that a fundamental right has been infringed, and
the court may grant
appropriate
relief, including a
declaration of rights.
[28] The jurisdiction of a high court to grant a
declaration of rights is derived from s
19(1)(a)(ii)
of the Supreme Court Act. The court may,
at
the instance of any interested person, enquire into and declare any
existing, future or contingent right or obligation, notwithstanding

that the applicant cannot claim any relief consequential upon such
determination. This involves a two-stage enquiry:
First,
the court must be satisfied that the applicant is a person interested
in an ‘existing, future or contingent right or obligation’,
and
then, if satisfied, it must decide whether the case is a proper one
for the exercise of its discretion (
Durban
City Council v Association of Building Societies
1942
AD 27
at 32).
[29] Marais
J and Gildenhuys J devoted some time to the question of that
discretion and held that they would not have exercised
it in favour
of the respondent because the matter was one for the JSC. The
majority found otherwise but, once again, in the light
of the
conclusions we have reached hereinafter on other aspects of the case,
the question of discretion does not arise.
[30]
The
respondent sought to persuade the high court to issue a declaration
of invalidity under s 172(1)(a) of the Constitution, which
provides
that when deciding a constitutional matter a court must declare that
‘any law or conduct that is inconsistent with the
Constitution is
invalid to the extent of its inconsistency’. The court held that
the provision did not apply to the case and
expressly declined to
declare the complaint lodged against the respondent invalid (at para
108). Since there is no cross-appeal
that issue is not before us for
reconsideration
(
Goodrich
v Botha
1954 (2) SA 540
(A))
.
THE ORDER
[31] As we indicated earlier, the foundation of the
respondent’s case was that the appellants had acted institutionally
(‘as
a court’). It is abundantly clear that they did not do so,
as the high court correctly found. That should have been the end of

the matter. However the court proceeded to examine whether on any
basis established by the facts the appellants violated the
constitutional
rights of the respondent in lodging the complaint and
publishing the media statement. The court did so on what it
considered to
have been a concession of the appellants that the court
was at large to consider the declaratory prayers on the basis that
the
appellants had acted other than institutionally. The appellants’
counsel denied that such a concession was made but stated, quite

correctly, that it was in any event a matter of law whether there was
a proper basis for the relief.
[32] Having found that the appellants had not acted
institutionally the high court dealt with the prayers as if they did
not contain
that qualification. The court held that the Constitution
had not been violated (prayer 1); that the respondent’s right to
privacy
(prayer 4) and to access to courts (prayer 7) had not been
infringed; and that the lodging of a complaint with the JSC had not
been wrongful (prayer 8). In the absence of a cross-appeal the
dismissal of those prayers does not require further consideration.
[33] The first three declaratory orders that were issued
concerned the
publication
of the complaint which was, in
general terms, declared to have been ‘unlawful’ (para 1.1); to
have violated the respondent’s
constitutional ‘right to dignity’
(para 1.2); and to have violated his (presumably constitutional)
right to a hearing (para
1.3). The fourth dealt with the
lodging
of the complaint, which was declared to have violated his
constitutional right to equality (para 1.4). All the declarations
were
premised on the fact that the complaint was laid and the media
release issued ‘on the basis of ex parte representations’ of
the
two Justices and additionally, in the case of para 1.1, on their
‘untested allegations’. As the high court said, ‘all
these
violations emanate from the applicant not being accorded the right to
a hearing in relation to the publication and the laying
of the
complaint.’
[34]
The
finding that the appellants had not acted institutionally meant
ineluctably that the respondent’s cause of action fell away.
The
duty to hear a person was at common law always limited to judicial or
some administrative organs; and a person acting in a
private capacity
has never had such a duty. The Constitution is not different. The
audi
principle can only be sourced in either s 33 or s 34 of the Bill of
Rights: the former deals with just administrative action and
the
latter with a fair public hearing before courts. Since the appellants
did not ‘act as a court’ the fair trial provision
did not arise
and since they did not act as an administrative body the
administrative justice provision did not apply either.
THE RATIO OF THE HIGH COURT
[35] The reasoning of the high court is difficult to
encapsulate neatly especially in the light of what would appear to be
some
inconsistencies and conflicting findings. It would, however, be
fair to say that the court reasoned along these lines:
A distinction must be made between the ‘trigger’
stage’, ie, the stage leading up to the laying of a complaint and
the ‘examination’
stage, ie, the stage of the proceedings before
the body charged with the investigation of the complaint (in this
case the JSC).
(We derive the term ’trigger’ stage from
a
dictum by Conteh CJ in
Meerabux
v. The Attorney General of Belize
(Belize Supreme Court at
www.belizelaw.org
)
which at a later stage came before the Privy Council in
Meerabux
v The Attorney General of Belize
(Belize)
[2005] UKPC 12, [2005] 2 AC 513
).
To
impose an obligation on a complainant to afford the accused judge an
opportunity to be heard before lodging a complaint would
‘stretch
the requirements of procedural fairness a bit too far’ (at para
24).
It
quoted with apparent approval a statement by Professor Martin L
Friedland (
A
place apart: Judicial independence and accountability in Canada
(1995) p 134)
that although it would be very unfair for a body such as the JSC
itself to publicize complaints that have not gone on to a hearing,

‘one cannot prevent a complainant from going public.’
In
the light of this the two Justices involved were not obliged to give
the respondent a hearing because they could rely on their
personal
knowledge.
The
appellants ‘admittedly had a right and a duty to lodge the
complaint’ with the JSC ‘once they received information about

the events and they considered that a breach of judicial conduct had
taken place’ (at para 48).
However,
since the integrity of the judiciary resides in each and every
member of the judiciary, the complaint procedure must
assume the
integrity and innocence of the judge, even in the face of a
complaint, until the guilt of the judge has been proven
following a
fair procedure and process (at para 22). For this the court (at
paras 69 and 72) relied on
Rees
v Crane
[1994] 2 AC 173
(PC).
The
distinction between the ‘trigger’ and examination stages falls
away if the complaint, at its early stages and prior to
it being
lodged, is conveyed to a senior person who did not observe the
alleged misconduct.
Under
those circumstances the rules of natural justice require that the
judge accused should be afforded an opportunity to be
heard when
such senior person considers lodging such complaint (at para 76).
The publication of the fact of the complaint was unfair
and led to a violation of the respondent’s constitutional rights
because
the underlying facts had not been established; the witnesses
were unwilling witnesses and had not conveyed their version to all

the appellants personally; they had refused to provide a written
statement and at best the complaint was based on hearsay; this

should have made the other appellants alive to the fact that there
was possibly another version to the same story; the complaint
and
the press release did not contain any detail, which made it
impossible for the respondent to deal with the allegations and

refute them immediately (at para 52 and 79); and the appellants
acted with undue haste (at para 48).
[36]
The
essential reasoning that led to the making of the orders seems to us
to be contained in the assertions that we have paraphrased
in (g) and
(h) above. We regret that we cannot agree with those assertions for
the reasons that are dealt with more fully below.
In particular, it
is not readily apparent to us on what legal grounds they were
founded.
The
high court’s reliance on
Rees
v Crane
(supra) to disregard the distinction between the ‘trigger’ and
examination stages was not justified. That case was not concerned

with the ‘trigger’ stage but with an initial investigation after
the complaint had been laid by the Judicial and Legal Service

Commission that was tasked with advising the President to appoint a
tribunal to investigate and report to parliament on the judge’s

alleged misconduct. The case did not deal with the rights of the
judge before the complaint was laid with the Commission in the
first
instance.
[37]
Counsel for
the appellants challenged the conclusions of the high court on
various grounds that need no elaboration but they ultimately
came
down to contesting that the appellants were obliged in law to afford
the respondent a hearing before they laid the complaint.
The
difficulty faced by the appellant’s counsel, however, was the
difficulty inherent in establishing a negative, particularly
when, as
here, the case has mutated over time. We think it is convenient in
those circumstances to identify the issues by turning
first to the
case for the respondent as it came to be presented before us.
[38] But first a matter that calls
for comment. In the course of its judgment the court below made
certain factual findings that
reflected adversely upon the
appellants. We were asked by their counsel to draw attention to the
fact that these were application
proceedings in which a court is not
called upon to make factual findings (except in exceptional cases)
and ought to have been dealt
with it as such. The undesirability of
resolving issues of fact on affidavit has often been remarked upon
and bears no repetition
(
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
at para
26-27)
. We do not think we
ought to delve into those matters save to say that to the extent that
factual findings were made contrary
to those ordinary principles we
do not endorse those findings.
THE RIGHT TO BE HEARD
[39] It has been difficult to pin down precisely where
the rights that are asserted by the respondent are said to be
sourced. Although
reliance was placed upon the Constitution that
reliance was at times expressed in broad and unspecific terms. A
court cannot overlook
what was said by Kentridge AJ in the earliest
case that came before the CC, namely that ‘it cannot be too
strongly stressed that
the Constitution does not mean whatever we
choose it to mean’ (
S v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at para 17).
[40] It nonetheless became clear early in argument that,
whatever the source of the alleged right might be, the respondent
does
not assert a right on the part of a judge to be heard by
complainants generally before they lay complaints before the JSC, and
that is undoubtedly correct
(
Kaunda
v President of the RSA (2)
2005 (4) SA 235 (CC) at para 83-84;
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
at para 35-36;
Wiseman
v Borneman
[1971] AC 297
(HL) at 308E-F;
Brooks v DPP of Jamaica
[1994] 2 All ER 231
(PC) at 239g-j). While a judge is obviously
entitled to be heard in the course of the investigation of a
complaint (as appears
from the various cases and protocols referred
to by the high court and referred to in the heads of argument) that
is not what we
are concerned with in this appeal. We are concerned
instead with the act that initiates such an enquiry (the ‘trigger’),
which
is the decision to lay a complaint. In that respect there is no
authority to which we were referred or of which we are aware –

whether in decided cases or in judicial protocols anywhere in the
world – that obliges a complainant to invite a judge to be
heard
before laying the complaint. Indeed, the authorities all say the
opposite
(
Meyer
v Law Society, Transvaal
1978 (2) SA 209
(T) at 214F-H;
Meyer v Prokureursorde van Transvaal
1979 (1) SA 849
(T) at 855G-856E;
Moran
v Lloyd’s (a statutory body)
[1981] 1 Lloyd’s Reports 423 (CA) at 427)
and
a rule to that effect would be absurd, because it would altogether
undermine the process of investigating complaints.
[41] The respondent confined himself instead to
asserting a right to be heard when the complainant is a judge. The
distinction that
was drawn between complainants generally, on the one
hand, and a complaining judge on the other hand, was said to lie in
the oath
of office taken by a judge and in s 165 of the Constitution,
though as the argument progressed that was developed further to
include
the more general duty that is cast upon judges to uphold the
dignity of the judicial institution. We think a fair summary of the

argument in that regard was that judges are obliged at all times, by
the nature of the office that they hold, to act judicially
when
deciding matters that relate to that office, which includes an
obligation to observe the rules of natural justice when making
such
decisions.
[42] There is considerable merit in the submission that
a judge who is minded to lay a complaint against a colleague has
special
duties that are not shared by lay complainants, for there is
an overarching duty upon judges, in whatever they do, to preserve the

dignity of the judicial institution. Indeed, the Constitution itself
commands all organs of state, which include the judiciary,
to ‘assist
and protect the independence, impartiality, dignity, accessibility,
and effectiveness of the judiciary’. The duty
that is cast upon
judges no doubt calls upon them to act with due care and
circumspection before exposing the judicial institution,
and those
who hold office in the institution, to loss of public confidence
through allegations of misconduct, as submitted by the
respondent’s
counsel. That might indeed in some cases call for an invitation to
be extended to the judge concerned to offer
an explanation for the
alleged misconduct before a complaint is laid. Whether that will be
so in a particular case will necessarily
be bound up with the
particular circumstances in which the decision comes to be made, for
there are peculiar complexities that
are capable of arising if such
an invitation were to be made. But we are not called upon to
consider whether that was called for
in this case, in which we are
not adjudicating ethical questions but questions of law. And it is
there that the submission on behalf
of the respondents breaks down
fatally on two related grounds.
[43] The first is that those duties are not imposed upon
a judge for the protection of the personal interests of other judges
but
for the protection of the institution in the interests of the
public at large. And in this case the respondent does not purport
to
be asserting the interest of the public in the protection of the
judicial institution, which he would have had no proper grounds
for
doing, but is asserting instead the protection of his personal
interests. The court below seems to us to have blurred that

distinction, and in that respect we think it erred, when it said in
its judgment that the right that he sought to assert was a
right that
‘is asserted in favour of the applicant as a member of the
judiciary’.
[44] But equally fatal to the respondent’s case on
that score is that the duties we have referred to are not sourced in
rules
of law that are enforceable in the courts. They are sourced in
ethical duties attaching to judicial office that are enforceable

ultimately only by the sanction of removal from office.
[45] It was no doubt that consideration that compelled
the respondent at the outset to attempt to bridge the chasm between
ethical
principle and legal rule by founding his case upon the
proposition that in making their decision the appellants were acting
institutionally
(‘as a court’) in the performance of the
judicial function. For there is no doubt that in the performance of
the judicial
function, by which we mean the adjudication of rights
and obligations, judges are bound to observe and apply the
substantive rules
of law that generally confer a right to be heard
upon persons whose rights will be affected by a judicial decision.
[46] So far as the respondent’s counsel relied upon
the oath of office, and on s 165 of the Constitution, to distinguish
judge
complainants from other complainants, the submission simply
takes us back to the proposition upon which the respondent founded
his claim in the first place, namely, that the appellants were acting
institutionally when they laid the complaint. The oath of
office, and
s 165, are concerned with the performance of judicial functions in
the exercise of judicial authority. The insurmountable
barrier that
is encountered by counsel’s submission, as rightly found by the
high court, is that in making their decision the
appellants were not
performing a judicial function (or as the respondent would have it,
acting ‘as a court’).
[47] It was no doubt in recognition of the
insurmountability of that barrier that the respondent’s lead
counsel found himself
compelled to abandon that argument and concede
that the order made by the high court in paragraph 1.4 could not be
sustained.
And while a valiant attempt was made by one of his
juniors, who presented part of the respondent’s case, to later
resuscitate
the argument, contrary to the wiser appreciation by his
leader of the futility of pursuing it, we have no doubt that the
concession
was inevitable on a proper analysis and was rightly and
properly made.
THE MEDIA RELEASE
[48] That leaves the question whether it was unlawful
for the appellants to publish (by way of the media release) the fact
that
the complaint had been made. As mentioned, the orders that
were made by the high court in that regard were all premised on its

finding that the appellants acted unlawfully in failing to afford the
respondent an opportunity to be heard before making the complaint.

When seen in the light of the reasoning of the court, in which the
laying of the complaint and the publication of the allegations
were
intertwined, we think it is clear that the court did not consider,
and it was not called upon to do so in view of its findings,
the
question that is now before us, which is whether the publication was
unlawful notwithstanding that it was lawful to have laid
the
complaint.
[49] Much of the argument of the respondent’s junior
counsel, who presented that part of his case, was founded upon the
supposition
that the appellants were obliged to allow the respondent
an opportunity to be heard, on much the same basis that we dealt with
earlier, and in view of our findings on that issue they do not serve
to take the matter further. He also sought to persuade us that
the
publication of the allegations was unlawful because its effect was to
reflect adversely upon the judicial institution notwithstanding
that
it was lawful to have laid the complaint. But once more one needs
reminding that in making his claim the respondent did not
purport to
be asserting the broader interests of maintaining the dignity of the
institution but to assert his personal interests.
In any event it
was not the case of the respondent that the publication of the
allegations, in itself, violated his rights. His
case was that it
violated his rights because he had not been permitted an opportunity
to refute them.
[50] Once having found the appellants did not act
unlawfully in laying the complaint we can see no basis for finding
that they were
obliged to keep that secret for the reasons dealt with
more fully below. On the contrary there is much to be said for the
contrary
proposition (bearing in mind the circumstances in which it
occurred) that the constitutional imperatives of transparency obliged

them to make the fact known. The appellants said in this regard:
‘
In
the circumstances where the independence of the Constitutional Court
had been threatened and the integrity of the administration
of
justice in South Africa generally, it was considered imperative and
appropriate that this be publicly disclosed. Should the
facts have
emerged at a later stage there would have been a serious risk that
the litigants involved in the relevant cases and
the general public
would have entertained misgivings about the outcome and the manner in
which the decisions were reached. It was
especially important that
the litigants and the general public were informed of the attempt and
that the Constitutional Court had
not succumbed to it.’
[51] So far as counsel sought to rely upon the
constitutional protection of the respondent’s right to dignity he
was constrained
to confine that aspect of his dignity that was
impaired to the personality rights that attach to his reputation but
in that respect
counsel moved onto slippery ground. For it is well
established in our law, and not in conflict with the Constitution,
that the
prima facie wrongful violation of the right to dignity may
be justified
(
Khumalo
v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at paras 29-34)
.
Justification,
as Gildenhuys J pointed out (at para 51), can be raised validly if
the statement was
true and for the public benefit; constituted fair comment; or was
made on a privileged occasion. These are all specific applications
of
the broader principle that conduct, which is reasonable, having
regard to all the circumstances of the case, is not wrongful

(
Hardaker
v Phillips
2005 (4) SA 515
(SCA) at para 15;
Wentzel
v SA Yster en Staalbedryfsvereniging
1967 (3) SA 91
(T) at 98).
[52] An
allegation that a judge is guilty of judicial misconduct by having
sought to influence another judge is defamatory and violates
that
judge’s dignity. The media release contained at least such an
innuendo and was therefore prima facie unlawful.
To
consider whether the publication was in fact unlawful on that score
would call for us first to decide whether the factual averments
made
by the appellants (following the standard approach that is adopted in
motion proceedings –
Delta
Motor Corporation (Pty) Ltd v van der Merwe
2004
(6) SA 185
,
[2004] 4 All SA 365
(SCA)) establish the truth of the
innuendo. (The appellants went further, and submitted that on the
respondent’s own version
the imputation or innuendo was true.)
Counsel for the respondent wisely declined to invite us to embark on
that enquiry. Instead
he fell back on the bald assertion that it is
always unlawful for a judge to allege in public that another judge
stands accused
of serious misconduct and can never be justified, even
if the allegation is true and the publication is for the public
benefit.
[53] The basis of the submission appears to have been
that it can never be for the public benefit to know that a judge
stands accused
of gross judicial misconduct, especially if by another
judge. There are indications that the high court agreed. It said the
following
(at para 49):
‘
In deciding to go public at
that initial stage of the complaint the respondents had to act in a
manner that ensured a delicate balance
between the right of the
public to know and the inevitable result that publication itself may
result in the corrosion of public
confidence in the judiciary. The
public right to know had to be balanced with the way that knowledge
and information is purveyed.
. . . The applicant was dealt with
unfairly and his rights were violated by the failure to strike a
balance between the right of
the public to know and the need to
maintain public confidence in the judiciary.’
The court also quoted the following passage from the
Belize judgment (referred to above) in respect of the news that a
judge of
the Supreme Court was to appear before a body for the
purposes of investigation (at para 50):
‘
But the public weal itself
will be damaged if the news is not handled with care and
circumspection; for it may inevitably result
in the corrosion of
public confidence in the judiciary itself, with deleterious effects
on the administration of justice as a whole.’
[54] The fallacy of the finding that the appellants had
failed to strike a balance between the right of the public to know
and the
need to maintain public confidence in the judiciary is that
the court would seem to have considered the truth or untruth of the

defamatory allegation to be irrelevant. Disclosure of an allegation
of gross misconduct against a judge may in certain circumstances
not
be for the public benefit but that could hardly be the case if the
allegation is true. If the respondent in fact approached
the two
Justices in an attempt to influence their judgment it would have been
to the public benefit that that fact be made known.
The fact that the
respondent is a judge does not give him special rights or special
protection.
Judges
are ordinary citizens. What applies to others applies to them
(
Pharmaceutical
Society of South Africa v Minister of Health; New Clicks South Africa
(Pty) Limited v Tshabalala-Msimang NO
2005
(3) SA 238
(SCA) at para 39
)
.
They, too, like
government,
pressure groups, or other individuals, ‘may not interfere in fact,
or attempt to interfere, with the way in which
a Judge conducts his
or her case and makes his or her decision’ (
The
Queen in Right of Canada v Beauregard
(1986)
30 DLR (4th) 481 (SCC) quoted with approval in
De
Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC) at para
70)
.
The Belize judgment, it may be added,
was not concerned with the issue whether the publication of a
complaint against a judge was
improper of wrongful. It also did not
suggest that it was – only that publication must be handled with
care and circumspection.
[55] It will always be distressing for a judge to learn
in the media that he or she has been accused of misconduct but that
seems
to us to be an inevitable hazard of holding public office. The
remedy that is available to a judge who finds that he or she is in

that position is to insist that the body charged with investigating
such a complaint does so with expedition so as to clear his
or her
name. Nor should it be thought that such accusations may be made
with impunity: a judge, like any member of the public,
is entitled to
the consolation of damages for defamation if the publication of the
statement cannot be justified (
Argus
Printing and Publishing Company Ltd v Esselen’s
Estate
1994 (2) SA 1
(A)
). But
we do not think that his or her remedy lies in stifling the fact that
a complaint has been made (
Moran
v Lloyd’s (a statutory body)
[1981] 1 Lloyd’s Reports 423 (CA) at 427)
.
[56] For those reasons we conclude that the court below
erred by making the declaratory orders. The appeal must be upheld and
the
order of the court below replaced with an order dismissing the
application. Costs were not in issue. It is accordingly ordered as

follows:
(a) The appeal is upheld.
(b) The order of the court below is replaced by an
order dismissing the application.
On behalf of: HARMS DP, STREICHER, MTHIYANE, NUGENT,
CLOETE, PONNAN, MLAMBO
,
SNYDERS
AND MHLANTLA JJA
_____________________
L T C HARMS
DEPUTY PRESIDENT
For
Appellant: G J Marcus SC
M Sikhakhane
Instructed
by: State Attorney
Johannesburg
State Attorney
Bloemfontein
For Respondent: D B Ntsebeza SC
V Ngalwana
T Masuku
Instructed by: Nongogo, Nuku Inc
Cape Town
E G Cooper & Sons
Bloemfontein