By CARMEL RICKARD

What might have been fireworks in the Supreme Court of Appeal yesterday became a rout instead, as argument presented by lawyers acting for Judge President John Hlophe came unstuck.


The appeal had been brought by the judges of the Constitutional Court against a decision last September by the South Gauteng High Court that they had infringed several of Hlophe's legal rights. This followed the Constitutional Court judges' announcement that they had laid a complaint of misconduct against the Cape Town Judge President with the Judicial Service Commission.
Several of the nine judges who sat in the case yesterday challenged the view that the case embodied a constitutional crisis. 'It's a constitutional curiosity perhaps, nothing more,' said Judge Robert Nugent. This was in response to the suggestion by counsel for Hlophe that even though the Constitutional Court was the final forum for matters relating to the Constitution, as a party to the dispute the members of that court could not hear any further appeal in the Hlophe matter.
During argument, Dumisa Ntsebeza SC, for Hlophe, said that even when judges were not exercising their judicial function in court, they were still bound by their oath of office to act impartially. Judge Louis Harms, the presiding judge in the matter, commented that he had 'grave difficulties' with this suggestion.
'I have to be impartial in performing my judicial function. But I do not have to be impartial in relation to my children, or in business.'
Ntsebeza replied, 'The fact that you are not acting in court does not strip you of the function that you have. Once you take the oath there is something that attaches to the office that calls for a judge to act impartially.'
Ntsebeza contradicted himself on a number of occasions about whether his case was that the Constitutional Court judges acted wrongly in publicising the fact that they had made a complaint to the Judicial Service Commission against Hlophe; or that they acted unlawfully when they referred the complaint against him to the commission without first giving Hlophe a hearing.
At one point he was driven to concede that, on the arguments he was then advancing, the High Court should not have made one of its four orders, and that it could not now stand.
Eventually Harms told Ntsebeza that his submissions were inconsistent. And Nugent asked Ntsebeza whether there was 'any authority, anything, anywhere in the world in which it is said that the making of a complaint requires a prior hearing?'
During the debate between the appeal judges and Ntsebeza, his two juniors tried several times to get his attention to prompt him about other directions to take. At one stage Ntsebeza, obviously stressed, asked for an adjournment. Afterwards, as debate about the exact nature of the argument being advanced by Hlophe's team became more intense, Ntsebeza eventually asked whether one of his juniors in the case, Thobani Masuku, could take over and argue the matter. Masuku re-emphasised the point that Ntsebeza had been making: it would be unlawful for a judge not to take into account the impact of making a public statement; it would be unlawful to publish the fact that the judges had made the complaint and why, even if all the allegations were true. This was because 'a judge is bound to defend judicial independence'.
Nugent: 'I have difficulty in understanding how reporting something can be unlawful if it is true.'
Masuku also said that if the complaint had been made by an 'ordinary complainant' rather than by judges, it would not have been unlawful to publish the fact of their complaint.
At one point Masuku again claimed that there had been a duty on members of the Constitutional Court to have had a hearing before any complaint was laid. Judge Ken Mthiyane then reminded Masuku that he had been in court when Ntsebeza had conceded that this finding of the High Court could not stand.
Nugent asked Masuku whether '(i)f we were to find that the judges were not acting in a judicial capacity when they made their complaint, would that be the end of the matter?' 'That would be the end of the case,' Masuku said.
Was he saying that if a judge is alleged to have done something it (the fact that a complaint has been made) cannot under any circumstances be published? 'Yes,' said Masuku.
At the start of the hearing, Harms put it on the record that he had been informed by Ntsebeza that he would not be pursuing an application for Harms to recuse himself from the case. This came after Hlophe's legal team had informed Harms that Hlophe objected to Harms being in the case. They were told to make an application for the recusal of any judges to whom they objected at the start of the hearing, but in the event nothing came of the objection.
For his part, Gilbert Marcus SC argued that the majority in the High Court had made a number of damaging and unjustifiable factual findings (against the Constitutional Court judges). While the appeal had been brought against the orders made by the High Court, it would be prejudicial for that court's 'damaging findings' to be left uncorrected, and he urged that when they made their decision the appeal judges should bear this in mind.
He said that when the Constitutional Court's judges made their complaint to the commission, they acted no differently from ordinary members of the public who lay a complaint against a judge. Like the ordinary person they were not under a duty to give a hearing before making such a complaint.
Details of what Hlophe was alleged to have done were not debated during court nor were some of the more startling claims made in the heads of argument prepared by Hlophe's team. For example, they had said that a danger existed that Hlophe might be 'sacrificed' at the commission 'in order to shore up the tattered remains of the integrity of the judiciary.'
Judgment was reserved and is not expected for several weeks.