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Re: Paul Ngobeni v. Hoffman SC
Urgent Complaint Against
Advocate Paul Hoffman SC for Professional Misconduct and Unethical Conduct
Dear
Advocate Semenya:
I am writing to lodge a
professional misconduct and ethics complaint against Advocate Andrew Paul
Hoffman SC for his actions detailed herein. It is my understanding that the Cape Bar Council has taken a
decision to refer a similar complaint to the GCB given the previous litigation
by the Cape Bar Council against the JSC and its Chairperson on issues
substantially related to the underlying allegations of this complaint.. See, Cape Bar Council v Judicial Service
Commission and Others (11897/2011) [2011] ZAWCHC 388; 2012 (4) BCLR 406
(WCC); [2012] 2 All SA 143 (WCC) (30 September 2011). I have copied Advocate Newdigate on this correspondence and
he can surely correct me if I am mistaken in this regard.
I request that the investigation
and resolution of the extant Complaint be expedited for the following cogent
reasons. A major aspect of the
Complaint is that Hoffman has made prejudicial comments regarding two major cases
pending in the Western Cape High Court and which are of constitutional
importance, namely, the application by the Helen Suzman foundation against the
Judicial Services Commission and the sequel to the Glenister case, now known as
the Hawks litigation matter. It is
in the best interest of the administration of justice, the parties and Mr.
Hoffman that the investigation be expeditiously conducted and concluded before
these pending matters are ripe for appeal to the Constitutional Court. In both cases, Hoffman has raised the
spectre of recusal applications against the Chief Justice Mogoeng when the
matters are litigated in the Concourt.
It is only fair to all involved that the misconduct complaints against
Hoffman are resolved without undue delay.
The procedural posture and travel of the Glenister matter including the
involvement of the Chief Justice require extra sensitivity and prompt handling
by the Bar to contain any prejudice to the parties and the judicial system.
Substantively, I believe that
Hoffman has committed acts of misconduct as revealed by the following:
· The letter
of 18 July 2013 (entitled “Your AFT
speech and our interaction in The Hague”) written by Hoffman to the Chief
Justice to which he attached a draft media article written by him entitled
"The Chief Justice descends into
the arena".
·
Hoffman’s
publication on 27 July 2013 of the revised version of the draft article in the
Sunday Times newspaper.
·
Hoffman’s
false and scandalous accusations against the JSC chairperson Chief Justice
Mogoeng published in newspapers and through radio and television broadcast. The most serious aspects (of the
complaint) include allegations of contempt of court and attempting to defeat
the ends of justice, which it is alleged amount to gross misconduct, justifying
impeachment.
·
Hoffman’s filing of a frivolous, racially motivated
and retaliatory complaint of unethical conduct and “gross” judicial misconduct
against the Chief Justice Mogoeng based on Hoffman’s dislike of the Chief
Justice’s stance on transformation of the judiciary and the legal profession.
·
As detailed in this Complaint, Hoffman’s filing of the
complaint with the JSC, his correspondence with the Chief Justice and acts of
publishing such communications in the newspapers constitute acts of
professional misconduct and unethical behaviour warranting disbarment.
·
Hoffman’s
actions constitute an attempt to improperly influence the High Court in which
two cases are pending (one brought by the Helen Suzman Foundation (HSF) and one
brought by Hoffman’s client, Glenister which involves the Hawks
legislation). In terms of
section 165 of the Constitution the courts are independent and subject only to
the Constitution and the law, which they must apply impartially and without
fear, favour or prejudice. No person or organ of state may interfere with the
functioning of the courts. Organs of state must assist and protect the courts
to ensure the independence, impartiality, dignity, accessibility and
effectiveness of the Courts. Each
judge or acting judge is required by item 6 of schedule 2 of the Constitution,
on the assumption of office, to swear an oath or solemnly affirm that she or he
will uphold and protect the Constitution and will administer justice to all
persons alike without fear, favour or prejudice, in accordance with the
Constitution and the law. Other judicial officers or acting judicial officers
must swear or affirm in terms of national legislation.
·
Hoffman’s
actions not only involve unlawful attempts to influence the High Court hearing
the pending HSF and Hawks legislation matter but they also constitute an
attempt to influence the Chief Justice and the Constitutional Court outside
proper court proceedings therefore not only violates the specific provisions of
the Constitution regarding the role and function of courts, but also threatens
the administration of justice in our country and indeed the democratic nature
of the state. Public confidence in the integrity of the courts is of crucial
importance for our constitutional democracy and may not be jeopardised.
·
Hoffman’s actions, including the filing of the JSC
complaint against the Chief Justice was in violation of Sections 165 and of the
Constitution as it constituted an attempt to interfere with the Chief Justice’s
discharge of his constitutional duties.
Hoffman’s complaint was in bad faith and was filed for ulterior purposes
of shifting focus away from transformation and pursuing the agenda of keeping
white male dominance.
Consistent with his oath of office, the Chief Justice is obligated to “uphold
and protect the Constitution and the human rights entrenched in it” and has a
duty to “administer justice to all persons alike without fear, favour or
prejudice, in accordance with the Constitution and the law.” Hoffman’s unwarranted attacks on the
Chief Justice and Hoffman’s extortionate actions through letters and newspaper
articles threatening impeachment and defamation of the Chief Justice were
calculated to intimidate, blackmail and cower the Chief Justice into silence
and to dissuade him from performing his constitutional duties. In a similar vein, Hoffman’s
filing of a judicial misconduct complaint with the JSC was a nefarious act
calculated to intimidate, side-line, marginalize and silence the Chief Justice
in regard to the important debate surrounding transformation and constituted a
direct interference with his constitutional obligations.
·
Cumulatively, Hoffman’s actions complained of violate
the uniform rules of the GCB, constitute misconduct, and are unethical acts all
deserving of severe sanctions including striking off the roll of advocates. I
show in this Complaint that Hoffman violated the following rules of
professional conduct, acted unethically and demonstrate his lack of fitness to
remain a member of the Bar.
1.
Hoffman’s Dishonesty and Political
Campaign Against the Judicial Services Commission In General and its
Chairperson Chief Justice Mogoeng Mogoeng, In Particular.
1.1
At all times relevant hereto, Andrew Paul Hoffman SC was an admitted
advocate of the High Court and Director of the Institute for Accountability in
Southern Africa (IFAISA), a non-profit organization. Hoffman frequently writes on politics, legal subjects and
judicial matters including the Judicial Services Commission (JSC) and judicial
appointments. Hoffman considers
himself a specialist in constitutional litigation.
1.2
To understand why Hoffman targeted Chief Justice Mogoeng and why
Hoffman assiduously concealed the fact that he was involved in current
litigation destined for the Constitutional Court (by his reckoning) it is
important to expose the following facts:
a. By way of background, the SAPS Amendment
Act was first passed into law in 2008, when anti-corruption unit, the
Scorpions, was disbanded and replaced by the Directorate for Priority Crime
Investigation, a new unit within the police service known as ‘the Hawks'.
b. A businessman, Glenister, represented by
Hoffman, successfully argued that the legislation establishing the Hawks was
unconstitutional and he won the case. See, the Concourt’s 17 March 2011
‘Glenister judgment' in the Constitutional Court, Glenister v President of the Republic of South Africa and Others (Glenister II) [2011] ZACC 6; 2011 (3)
SA 347 (CC); 2011 (7) BCLR 651 (CC). The Court found that the SAPS Amendment Act gave
inadequate independence to the anti-graft unit in investigating corruption and ordered
the executive to amend the legislation.
In its judgment, the Court clearly outlined its criteria for South Africa's
anti-corruption entity: Adequate specialisation and training; independence from
political influence and interference; guaranteed resources; and security of
tenure for the entity's officials. The Constitutional Court ruled that chapter
6A of the SAPS Act must be sent back to Parliament for amendment because it
made the Hawks vulnerable to political interference. Its concerns related to
the conditions of service of the unit’s members and its head, the possible
effect on their job security due to their work, the appointment of members,
flexible and unsecured pay scales and who they reported to in Cabinet. The Constitutional Court gave 18 months
from the ruling for the amendment, and suspended its order of constitutional
invalidity for that period to allow for the amendment to the law.
c. It is significant that the current Chief
Justice, Mogoeng, rejected Glenister and Hoffman’s arguments. Mogoeng joined in a minority judgment of
former Chief Justice Sandile Ngcobo (other judges Yacoob and Brand AJ concurred)
who ruled that international law did not dictate to state parties the
particular form of independence that must be granted to an anticorruption unit. Chief Justice Ngcobo said there were
important operational safeguards to ensure the independence of the Hawks.
"I hold that the (Hawks) enjoy an adequate level of structural and
operational autonomy, aimed at preventing undue political interference,"
the chief justice said. He said
the constitution assigned to the police the role of preventing, combating and
investigating crime. "The placement of an anticorruption unit that is
dedicated to preventing, combating and investigating particular forms of
criminal conduct within the SAPS is therefore entirely consistent with the
constitution." As matters stand now, Mogoeng CJ is the only remaining
member of the panel that ruled against Glenister and that explains why Hoffman
sees him as an obstacle in future litigation he envisages involving the Hawks
legislation.
d. Subsequently, parliament passed the
amendments to the South African Police Amendment Act - known as the ‘Hawks Act'
– President Zuma signed the Act into law in September 2012. Almost immediately after the
President’s assent to the law, there were howls of protest from both Glenister
and Hoffman who claimed a myriad of things wrong with the legislation. They
argued that the amendments to the South African Police Amendment Act - known as
the ‘Hawks Act' - do not meet that Court's criteria for an effective
anti-corruption entity as laid out in the Glenister
judgment of March 2011. Glenister and Hoffman suggested that a new entity with
a specific mandate to combat corruption be established outside of the police
service. Glenister says that this could be achieved in a number of ways, either
through the creation of: a new Chapter 9 institution; a specialised unit within
an existing Chapter 9 Institution (e.g. The office of the Public Protector or
the Auditor General); or a free-standing legislated body which is not
accountable to the National Commissioner, the Minister or the cabinet. Glenister believes that the executive
failed to adhere to these criteria and therefore to the requirements of the
Constitution, specifically regarding the location of the Hawks and its
reporting structure. He
asseverates that as a unit within the police, the Hawks head is answerable to
the Commissioner of Police, the Minister of Police, Cabinet and ultimately, the
President. Glenister believes that this makes the unit vulnerable to political
meddling, compromising its ability to effectively investigate corruption at all
levels of society.
e. Glenister and the HSF approached the
Constitutional Court separately in November 2012 to oppose the amendments,
arguing they were still insufficient. Direct access to the Constitutional Court was denied and the
two parties agreed to appear before a full Bench of Western Cape high court
judges at the same time and present their arguments. Litigation is currently underway there and arguments are
being presented to the judges on the matter.
f. At the time Hoffman wrote to Chief
Justice Mogoeng in July 2013, the Glenister matter, just like the HSF matter
was pending.
Although Hoffman never at any time disclosed this fact in his correspondence
with the Chief Justice, the news media and the JSC, the Glenister case now
dubbed “the Hawks legislation” case is actually pending before the Western Cape
High Court.
1.3
Without being prescriptive, I respectfully request that the GCB undertake
the most vigorous, thorough, meticulous and unstinting investigation of
Hoffman’s misconduct. Failure to
unearth and face the truth of Hoffman’s misconduct will only feed conspiracy
theories and deepen the widely held perception that the organized Bar protects
its own at all costs even if doing so exacts a heavy price on judicial
independence and integrity. Hoffman knows that Chief Justice Mogoeng previously
ruled against him in the earlier Glenister judgment. Hoffman is involved in a
sequel litigation on Glenister’s behalf, the so-called “Hawks legislation” case
he alludes to and which is being hotly contested in the Western Cape High
Court. And yet he only informs the
Chief Justice about the HSF as a “pending” case and he totally avoids
mentioning that the Hawks case was pending as well.
1.4
The members of the GCB must honestly ask themselves
what would become of the credibility of the judicial system and independence of
the advocates if these same advocates litigating current cases in the High
Court were given a license or free reign to approach appeal court judges ex
parte and to start bargaining with them and to extract in advance certain
undertakings in regard to future recusal when their cases are appealed to the
Constitutional Court. Even
the appearance and mere possibility of that prospect will assuredly destroy
public confidence in the entire judicial system, our judicial officers and the
legal professions.
2.
Hoffman’s Activities, Speeches and Writings In
Opposition to Transformation and to Mogoeng’s Appointment as Chief Justice.
2.1
Hoffman acquired fame and notoriety during the debates surrounding the
nomination President Zuma’s nomination of Mogoeng Mogoeng as Chief Justice of
the country. He detailed the
reasons for his opposition to the nomination of Justice Mogoeng in an article
entitled “Mogoeng: What a Jutastat search
reveals”
Referring to Mogoeng’s experience Hoffman stated: “This is not the stuff of
which good Chief Justices of the calibre to which South Africans have become
accustomed are usually made, especially not if the Constitutional Court is to
become the new apex court in the next few years.” He claimed that the
“presidency ought to have picked its candidate only after consulting with the
JSC and political party leaders, not before, as has been done yet again,
despite the criticism of this modus operandi that was aired when Chief Justice
Ngcobo was appointed by the same president in the same cart-before-the-horse
way.”
2.2
Hoffman continued to make remarks in the article which are relevant
for the purpose of the extant complaint.
He stated:
Since his appointment in the Constitutional Court the nominee has
written only three judgments for the court and one dissenting judgment of his
own in the McBride case 2011 (4) SA
191.
The three unanimous judgements penned by him are Viking Pony 2011 (1) SA 327, Betlane
v Shelley Court 2011 (1) SA 388 and Malachi
2010 (6) SA 1.
That, beside the mysteriously and unprecedentedly reasonless dissent in the Dey
defamation case, that has attracted so much public interest (and fearfulness in
gay communities) is the sum total of his contribution since elevation
to the Constitutional Court.
He was part of the minority in Glenister (only two of whom survive since the
retirement of Ngcobo CJ and the return of Brand AJ to the SCA) but in that case
the minority judgment was that of the retired Chief Justice, in which he
concurred, as is evidently his habit.
The sad tale of the nominee allowing his wife to prosecute in a criminal
appeal before him (also overturned by the SCA, but apparently not a
reported case) suggests strongly that this candidate is not the right person for the
job, not yet anyway.
On being questioned about his failure to recuse himself, when he
obviously should have done so; his weak and unsatisfactory response was that no
one had asked him to do so. How can a proud, impartial and independent
judiciary be led by the perpetrator of so blatant and fundamental a breach of
judicial ethics?
2.3
A couple of issues illustrate Hoffman’s antipathy and
animosity towards Chief Justice Mogoeng but a few suffices here. Regarding the false accusation that
Chief Justice Mogoeng was the “perpetrator of so blatant and fundamental a breach of judicial ethics”
the Concourt resoundingly refuted that fallacious notion in
its ruling, President of the Republic of
South Africa and Others v South African Rugby Football Union and Others (Judgment on recusal application) [1999] ZACC 9; 1999 (4) SA 147;
1999 (7) BCLR 725 (4 June 1999).
There Louis Luyt made a recusal
application on the basis that some of the judges of the Constitutional Court
had a history of links with the ANC and would, therefore, not be able to give
him a fair hearing in his case against then president Nelson Mandela. The
additional allegations made by the Luyt collectively with regard to Chaskalson
P, Langa DP, Sachs J and Yacoob J were the following:
“17.1 Four
judges have “had extremely close ties with the ANC ”, and a finding against the
appellants would be adverse to the interests of the ANC and the President;
17.2 An
adverse credibility finding against the President would have serious political
implications for the government, and the ANC as a political party, especially
as the appeal was being heard on the eve of the national elections.”
2.4
In dismissing the
application, the Constitutional Court referred to “… a presumption that judicial officers are impartial in adjudicating
disputes.” This is based on the recognition that legal training and
experience prepare judges for the often difficult task of fairly determining
where the truth may lie in a welter of contradictory evidence. Social relationships, collegiality,
entreaties from relatives and friends or political connections are never
supposed to enter into the decisional calculus when a judge adjudicates a case. Individuals having conversations
or mere social banter with judges are entitled to rely on this legal
presumption and trust that no judge will easily succumb to any influences. The Concourt went on to provide
examples of practice where family members who are legal practitioners can
appear before their relatives who are presiding in cases as judges:
[84] The final allegation
relating to a personal relationship concerned the addition of Mr Matthew
Chaskalson, the elder son of Chaskalson P, to the legal team representing the
appellants in this appeal. Mr Chaskalson
has built a successful practice as a constitutional law expert at the
Johannesburg Bar and is the co-author of one of the leading works on the
subject. He has appeared as counsel in numerous cases in this Court. We would also mention that it has been
accepted practice in our courts for many decades that close family members
appear before each other and it has never before been suggested that it was
inappropriate.” The Court
itself gave examples in support of this statement and stated, “[i]n
this Court, apart from the case of Mr Chaskalson, Trengove AJ sat in cases in
which his son, Mr W Trengove SC appeared, and Kentridge AJ sat in cases in
which his daughter-in-law, Mrs J Kentridge appeared.
2.5
The fact that the Concourt stated authoritatively on
the matter of the “accepted practice in our courts for many decades that close family
members appear before each other and it has never before been suggested that it
was inappropriate” did not dissuade the likes of Hoffman, the DA
and other NGOs from launching a well-orchestrated campaign to prevent Zuma’s
appointment of Mogoeng Mogoeng as the Chief Justice of the Republic. Incredibly, they claimed the fact that
Mogoeng allowed a close family member (his wife) to appear before him when he
was serving as a High Court judge was a flagrant violation of the rules of
ethics. Hoffman unabashedly
endorsed a racist approach and perverse logic to the Mogoeng issue – it was
acceptable for close family members of white judges to have appeared before
their relatives but it was considered a disqualifying misconduct and blatant and fundamental a breach of
judicial ethics” for Mogoeng, a black judge, to have done the same. It
appears that this settled practice was followed and applied liberally only when
it came to whites.
2.6
I must point this out to illustrate that the DA, and the
white members of the Bar such as Hoffman give the impression that they do not
care about scholarship or legal principles when it comes to attacking black
judicial appointees they dislike.
Typically, the attacks are personal, vicious, vituperative and for the
most part based on deliberate distortion of established legal rules. I mention
this because Concourt definitively spoke about and issued a ruling about the
“accepted practice in our courts for many decades that close family members
appear before each other.” That
was over more than ten years before the Mogoeng nomination came up for
consideration before the JSC. Hoffman
who claims to be a constitutional specialist most certainly knew about this
ruling but he assiduously avoided mentioning it. Hoffman completely ignored the Concourt’s controlling SARFU precedent and insisted that
Mogoeng had a case to answer about the “accepted practice.” Even assuming that the SCA judgment
setting aside Mogoeng’s decision can be given precedence over the Concourt’s
ruling on accepted practice regarding recusal in matters involving family
members, the contradictory judgments only prove that reasonable judges may
disagree about recusal when family members are involved. Hoffman’s allegation that Mogoeng had
engaged in “blatant and
fundamental a breach of judicial ethics” was substantively false and fecklessly
dishonest.
2.7
Another judgment that was flagrantly misused to label
Chief Justice Mogoeng as a homophobe was Le
Roux and Others v Dey (co-authored by justice Froneman and Cameron), which
held that false imputations of homosexuality were not actionable and that one cannot be defamed if one is erroneously
or maliciously called a homosexual. This ground-breaking decision was a
departure from the historical position of courts around the world which have generally
found that falsely identifying someone as gay, lesbian, or bisexual (LGB) was
defamation per se. This position
was no doubt influenced by laws against sodomy and the Judeo-Christian beliefs
which regard homosexuality as an abomination or sin. Accordingly such identification was
viewed as inherently damaging to an individual's reputation, and anyone so
accusing could be sued for libel or slander claims.
2.8
Contrary to the beguilingly simplistic assertions of
the likes of Hoffman and De Vos, around the time of the Concourt’s Le Roux and
Others v Dey judgment, there was a rich
academic debate raging on in other countries such as the USA on whether a
false imputation of a person as LGB is defamatory. Some courts took the trailblazing approach and categorically
rejected the notion entirely, arguing that societal change in the area of
attitudes towards LGB individuals and same-sex sexual behavior has changed the
legal landscape in this area. Other courts stuck to the
common-law position and held that false imputations of homosexuality still
constituted per se defamation. The
travel of a case decided in New York on the subject illustrates the point made
here.
2.9
Just three months after the Le Roux and
Others v Dey judgment was issued and a few weeks
before Chief Justice Mogoeng was nominated for appointment, a New York trial
court issued a judgment, Yonaty v.
Mincolla. Just like Mogoeng
that court held that false imputations
of homosexuality still constituted per se defamation under New York law. The plaintiff in Yonaty alleged that the defendant told a family friend of Yonaty’s
girlfriend that Yonaty was gay.
Yonaty claimed that when this statement was repeated to his girlfriend,
she broke up with him, but he did not allege any economic injury. Nevertheless, the lower court denied
the defendant’s motion for summary judgment, holding that “a statement imputing homosexuality is defamation per se[.]”
2.10 As I stated, the ruling
came only three months after the Concourt’s Le Roux and Others v Dey ruling and a few weeks before the marriage
equality legislation, which enjoyed wide popular support, was signed into law
by Governor Andrew Cuomo on June 24, 2011. Despite these developments on the social and legislative
front, it was nevertheless deemed defamatory as of June 2011 to label a
heterosexual person gay in New York state. Needless to point out that the judge who rendered that
judgment was not attacked as a homophobe or given the unsavoury labels attached
to Mogoeng by the likes of Hoffman. The matter was appealed and on May 31, 2012,
the appellate court overturned the lower court’s decision in Yonaty, dismissing the plaintiff’s
claim for slander. This was after
Mogoeng was appointed Chief Justice and after he was tagged with the label
homophobe during the nomination hearings.
The Third Department citing New York’s “well-defined public policy of
protection and respect for the civil rights of people who are lesbian, gay or
bisexual,” held that “statements falsely describing a person” as gay “do not
constitute slander per se.” The court explicitly “overrule[d] [its] own prior case to the
contrary” and departed from the longstanding rule followed by the other
departments of the Appellate Division.
In its opinion, the Third Department made clear from the outset why the New
York precedents could not stand:
“the prior cases … are based on the flawed premise that it is shameful
and disgraceful to be described as lesbian, gay or bisexual.” That premise, the court found, could
not be squared with the reasoning of the United States Supreme Court in Lawrence v. Texas, the landmark case
holding that laws criminalizing homosexual conduct violated the Due Process
Clause of the Fourteenth Amendment.
In Lawrence, the Supreme Court struck down anti-sodomy laws in part
because it found that the criminalization of homosexual conduct justified, and
even invited, discrimination.
Further, the Third Department found that the public policy of New York
promotes respect and protection for the civil rights of gays and lesbians. As evidence of this policy, the court
pointed to the state’s statutory prohibition of discrimination on the basis of
sexual orientation, as well as the recent passage of the Marriage Equality Act,
legalizing same-sex marriage. Finally, the Third Department noted that the last
Appellate Division case to consider the question in depth, Matherson v. Marchello, was nearly 30 years old. Given the massive shift in public attitudes
and the lifting of legal restrictions on homosexuals in the intervening
decades, the court concluded: “it cannot
be said that current public opinion supports a rule that would equate
statements imputing homosexuality with accusations of serious criminal conduct
or insinuations that an individual has a loathsome disease[.]” Because of its holding that an
imputation of homosexuality cannot constitute slander per se, the Third
Department ruled that Yonaty’s failure to plead special damages warranted the
dismissal of his claim.
2.11 These cases
and many others demonstrate that at the time of the Dey decision there was no clear judicial consensus on the
permissibility of sexual-orientation defamation claims and there was a serious
and legitimate debate raging on these issue around the world. In fact, the travel of the Yonaty case, and Morton, poignantly teach us that, even in jurisdictions where LGBT
rights are generally viewed with favor, there is staggering inconsistency in
courts’ treatment of sexual-orientation defamation claims. In mature
democracies this hot-button political and human rights issue could be
discussed, debated and litigated in a civilized manner without members of the
judiciary who ruled differently being labeled “homophobic” and other odious
names.
2.12 The
relevance of the debate and civility of the participants to my complaint
against Hoffman should be obvious.
Hoffman and a few self-anointed guardians of our constitutional
democracy have invented and perfected the despicable tactics of labeling the
targets of their criticism as racist or homophobic simply to shut them down,
blackmail them into silence or to drown out and delegitimize their dissenting
voices in our public discourse.
The pivotal question for the GCB is this: can our justice system survive
when lawyers start using such heinous labels as “racist” and hurl accusations
of criminal wrong-doing against sitting judges including the Chief Justice? Hoffman’s complaint with the JSC
labeling the Chief Justice as a racist, unethical and a criminal must be viewed
against this background.
2.13 The Bar
Council is not being asked to adjudicated who was right or wrong – in fact the
matter was settled authoritatively by the majority judgment in the Concourt’s Le Roux and
Others v Dey judgment. I am not even inviting the Bar Council
to decide, with the benefit of hindsight, whether Hoffman’s position and
utterances against the Chief Justice regarding his dissenting judgment was
justified or not. I am raising the
issue as background information shedding light on Hoffman’s modus operandi and current attack on the
Chief Justice. Given that an
advocate who is also an officer of the court has constitutional rights like all
citizens to participate in political, social and civic life of his country what
are the appropriate ethical boundaries when it comes to an advocate’s
criticizing a judicial officer especially the chief justice who is the leader
of the judiciary? Can the
advocate, as a serious participant in public dialogue and the debate around
judicial independence and transformation ethically resort to accusations of
racism, sexism, homophobia and religious bigotry simply because he disagrees
with a judge’s ruling or extra-judicial speech? Even more pertinent, is it ethically permissible for an
advocate and an officer of the court to stifle an ongoing debate, prey upon
gullibility and fear about affirmative action or transformation, demonizing
ideas and people alike and go to the extent of calling for the impeachment of a
judge based on a false concocted narrative and dislike of the judge’s stance on
transformation of the judiciary? I
suggest that the way toward better non-racists, nonsexist and non-homophobic or
neutral discourse on the judiciary is itself only clear when lit by truthful
dialog and respect for all members of the judiciary, not just whites. Just like in the Dey matter, it is not uncommon that our
judges’ common law or constitutional approaches to similar issues may routinely
differ. However, as evidenced by
the experience of courts in advanced democracies, this lack of consensus is not
justification for vilifying the judges by calling them racists, sexists and
homophobes. An advocate who
resorts to such antics and intellectual short cuts must be investigated and be
held accountable in case of proven breach of ethics and unprofessional conduct.
2.14 As shown
below, Hoffman has crossed the line by his latest attacks on Chief Justice
Mogoeng. The credibility of the
entire advocates profession will hinge on how the GCB deals with the Hoffman
matter – clear and appropriate lines of demarcation must be drawn and a
credible system of accountability must be put in place if judges and the
generality of the public are to take the organized legal profession seriously. This comes at a crucial time when some
leading advocates are raising alarms about threats to the independence of the
legal professions.
2.15 An
interesting perspective on the ideological motivations of those (like Hoffman) who
use various arguments to justify white male privilege in the judiciary is found
in Gender and the Chief Justice:
Principle or Pretext? Elsje Bonthuys;
Journal of Southern African Studies; Volume 39, Issue 1, 2013; pages 59-76
where the author notes that the post-apartheid South African Constitution
requires that the judiciary be transformed ‘to reflect broadly the racial and
gender composition of South Africa’. She states that because the legal system
and the judiciary are the least ‘transformed’ organs of government and because
of their social and political significance, the appointment of judges has
become an important avenue for South Africans to continue to contest issues of
race and power, usually using codes such as ‘merit’ or ‘transformation’
but sometimes descending into more open racial hostility. The article examines
the debate around the appointment in 2011 of Chief Justice Mogoeng Mogoeng in
which his views and judgments on gender and sexual orientation have been widely
used to bolster the argument that he was not fit to be appointed. The author
observes that while gender and sexual orientation was raised almost
universally, certain of these criticisms used gender in ways
which echoed and amplified historical stereotypes of black men in general, and
African male sexuality in particular. In these debates gender became a proxy
for race because of the way in which discourses around gender echoed racial
themes and stereotypes which have predominated in popular debates around the
judiciary. In addition, ‘gender
arguments’ were used to strengthen claims that professional seniority
should be the main criterion in judicial appointments – a factor which would
clearly favour white men in a profession in which black people and women remain
a minority. This, she argues, placed feminists in an invidious position by
using feminist arguments to justify racial privilege while subverting or
ignoring more systemic gender and racial inequalities within the largely
untransformed legal profession.
One can read from the foregoing thesis that the argument which started
off as a complaint about lack of commitment by the JSC to gender representation
metamorphosed into an argument about discrimination against white males or was
simply hijacked with the complicity of putative feminists which resulted in the
original campaign for gender representation being “inexplicably jettisoned” as
stated by the Chief Justice.
In the context of our unique historical background, even some “radical”
or “progressive” white feminists and self-anointed “progressives” may favour
maintaining white male privilege if the alternative is to let the black African
male advance.
2.16 A report in
the Cape Times of 4 September 2011 (at the time of the hearings for Justice Mogoeng’s
appointment as Chief Justice) stated that Hoffman ‘s Institute for
Accountability in Southern Africa (Ifaisa) warned “that it would challenge the appointment - on both procedural and
substantive grounds - should it go ahead.” Advocate Paul Hoffman, “director
of Ifaisa, said it would prefer to avoid litigation, but reserved its right to
challenge Mogoeng's nomination and possible appointment.” Although he abandoned the litigation
route, Hoffman appears to have embarked on other extra-legal tactics of direct
assault on Mogoeng’s integrity.
Hoffman’s antics were recently described by the Judicial Conduct
Committee (JCC)) of the JSC as “disingenuous” and “shocking.”
2.17 On 3
January 2012, and within a few months of Mogoeng’s appointment, Hoffman
published an article “To whom is the Chief Justice referring?
In the “Witness” newspaper. He commented on the funeral oration
given by Chief Justice Mogoeng on the occasion of the state funeral of the late
Judge President of the Land Claims Court, Fikile Bam. Hoffman stated the following:
the new Chief Justice, Mogoeng
Mogoeng, took a swipe at those he called
“vicious” critics of the judiciary and sitting judges. Singling out retired judges for special mention, and threatening those
whose criticisms are not “collegial and constructive” with disciplinary
measures in terms of the Judicial Code of Conduct, he let it be known in no
uncertain terms that he disapproves of criticism of the judiciary he leads.
It is important to identify those to whom he refers and to ascertain why these
“vicious” critics were lambasted by him in his speech. These unprecedented
remarks, available in full on the website of The Witness, were made in non-specific and generalised terms — they bear careful
analysis. This is especially so as the
chief justice chose not to name any names when delivering his broadside.
The starting point of such analysis is naturally the Constitution itself. The
judiciary is afforded special protection by the terms of its section 165.
Interference with the functioning of the courts is specifically proscribed.
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.
Contempt of court is a
long-standing and well recognised criminal offence, one which the courts and
litigants have not shied away from utilising when the need arises. Defamatory
criticisms can give rise to both civil and criminal proceedings. Intimidation
is a statutory offence. The Judicial Service Commission is always available to
investigate complaints of misconduct by judges, including retired judges,
although it seems that this avenue has not yet been explored by anyone as
dissatisfied with critical comments as the chief justice appears to be.
Against this is the right of all,
including retired judges, to freedom of expression. This right is central to
the press and other media and includes the right to impart information or
ideas. The limitations on the right to freedom of expression do not appear to
have any bearing upon the matters alluded to by the chief justice and need not
form any part of the analysis of his stance. The context of the remarks made by
the learned chief justice is one in which the transformation of the judiciary
remains a contested terrain. To some the process of transformation has been
pursued with too much vigour; to others not enough has been done to take gender
and race into consideration when judicial officers are appointed. Certainly, when it comes to the appointment
of women as judges there has been less transformation than has been the case in
respect of redressing the racial imbalances of the past. Central to much of
the criticism of the judiciary is the weight to be attached to the primary
requirements for the appointment of judges: they should be appropriately
qualified, fit and proper persons. The problem, not to put too fine a point on
it, is that there are too many candidates for the bench who meet the primary
requirements but do not fit the need for the judiciary to reflect broadly the
racial and gender composition of the country. These, constitutionally speaking,
“must be considered” when appointing judges. Some critics contend that this
consideration has been allowed to trump the primary requirements too often in
the helter-skelter pursuit of transformation at a rate that the pool of persons
willing to be candidates for the judiciary is not able to sustain. Others bewail the slow rate of
transformation, pointing to the fact that at no sitting of the JSC has a pale
male candidate (the demographic in greatest oversupply) not been appointed.
The political imperative to
transform society, and with it the judiciary, has led to appointments that are
lacking in lustre. The chief justice himself has very properly highlighted the
inability of some new appointees to write judgments expeditiously and run their
courts efficiently and has pointed out that a black skin is not a guarantor of
commitment to the values of the Constitution which all judges are obliged to
uphold.
In all these circumstances, it is a little difficult to divine who it is
that has provoked the ire of the chief justice. The litigation to unseat
Cape Judge President, John Hlophe, has been waged for years and is being
conducted by Helen Zille, in her capacity as Premier of the Western Cape, and
Freedom Under Law, an NGO whose name reveals its mission. It is true that
retired justice Johann Kriegler has played a leading role in the formation and
activities of Freedom under Law (FUL). Its activities, and those of Kriegler
before its formation, have always been both proper and constructive, not
“vicious”. Indeed, Kriegler initially become directly involved in the
complaints against Hlophe as a critic of the JSC’s handling of the first
complaints against Hlophe. After his spat with the justices of the
Constitutional Court began in May 2008 FUL once again entered the fray as a
critic of the JSC, not the judiciary. Long before Kriegler’s involvement in the
Hlophe saga, the mendacity, fitness for office, improper moonlighting, tax
evasion and racism of Hlophe had detained the JSC and a previous chief justice.
Instead of dealing fully, properly and transparently with the early complaints,
they were swept under the carpet. Emboldened by his apparent immunity, Hlophe
went on to disgrace himself and bring the entire Bench into disrepute in a
despicable display of what can only properly be described, even on his own
version, as interference with the functioning of the Constitutional Court — an
activity not permitted by the express words of the Constitution. It is
lamentable that the litigation and disciplinary proceedings concerning Hlophe
have been allowed to drag on for so many years and that he has been allowed to
act as a temporary member of the JSC vetting candidates for appointment while
still under a cloud.
It is also so that retired judge
of appeal, Ian Farlam, the patron of the Centre for Constitutional Rights, has
publicly expressed well-reasoned reservations about the plans to create a
single apex court. His “if it ain’t broke, don’t fix it” arguments can hardly
be described as vicious. Kate O’Regan, a retired justice of the Constitutional
Court has participated intelligently in public discourse on topics as disparate
as the role of women in the judiciary, the separation of powers and the
criteria for appointment of commissioners of the JSC. Like her colleague Albie
Sachs, also often in the public eye, she does not have a vicious bone in her
body.
The retired chief justices,
Chaskalson, Langa and Ncgobo are all models of propriety and decorum.
Tellingly, Chaskalson has been tartly vocal in his disapproval of Hlophe’s
conduct toward his former colleagues in Braamfontein. Other retired judges seem
to prefer to keep a low profile; either enjoying their grandchildren or helping
out quietly in the neighbouring countries and the arbitration forums of the
region.
It is, and remains, impossible to
work out to whom among the retired judges the chief justice was referring as
“vicious” critics of sitting judges and the judiciary. Perhaps he should
consider being a little more explicit on the next occasion in which he feels
moved to express his ire so forcefully. Let’s all hope that he was not firing a
warning shot across the bows of the legitimate critics of the judiciary who
happen to be retired judges. The pool of talent among them is a valuable national
resource that ought not to be stifled or silenced by ill-considered or
over-sensitive remarks.
2.18 To be
perfectly clear, this misconduct complaint is not about whether Hoffman has
constitutionally protected rights of free speech, including making true
statements reflecting adversely on the reputation or character of our judges. I
fully accept that he does - it would be pleonastic to rehearse the provisions
of Section 16 of our constitution granting Hoffman such rights in this
document. The issue is whether Hoffman crossed the line and, in pursuit of his
ideologically driven agenda, made false statements impugning the
qualifications, record and integrity of the Chief Justice and whethere these
statements were made with either knowledge of their falsity or with reckless
disregard as to their truth or falsity, judged from the standpoint of a
reasonable advocate.
3.
The Complaint By Helen Suzman Foundation (HSF)
and Hoffman’s False Interpretation, Distortion and Hijacking of Same.
3.1
On 7 June 2013, the Helen Suzman Foundation (HSF)
launched legal action against the Judicial Service Commission (JSC) in the
Western Cape High Court “in order to clarify the procedure and decision-making
process relating to the nomination of persons for judicial office. The HSF, in
challenging the lawfulness of a particular process of the JSC, hopes to clarify
and establish the correct interpretation and implementation of section 174 of
the Constitution.” Helen Suzman
Foundation takes Judicial Service Commission to Court; http://hsf.org.za/media/press-releases-1/helen-suzman-foundation-takes-judicial-service-commission-to-court . A copy of
the Founding Affidavit is also found on the HSF website and can be downloaded.
3.2
In its
press release announcing the filing of the legal action, the HSF expressly
states: “The HSF supports the
constitutional imperatives of judicial transformation. However, there is a
growing perception that talented candidates for judicial appointment and
advancement are being overlooked for reasons that are not clear, or explicit.”
Id.
3.3
It is not true that the pending HSF complaint falls
within the category of what might be labeled an anti-transformation
stance. In fact the Affidavit in
support of the Application states: “A factor that our Constitution has
prescribed as relevant, as codified in section 174(2), is the need for the
judiciary broadly to represent the racial and gender demographics of South
Africa.” (Para.23). The HSF goes
on to state that section 174 (2) “seeks to give effect to two principal
purposes, one corrective and the other institutional.” (Para.24). It then goes on to state the
following:
25. First, the injunction created by
section 174(2) is meant to account for South Africa’s unique history and to
correct the inequalities wrought by a system of discrimination and
exclusion. In a sense, it serves
as an “affirmative action” provision, which seeks to remedy imbalances in the
judiciary. There is no doubting
the importance of this purpose, which our courts have recognised as not only
constitutionally required, but also socially desirable.”
26. Second, an essential
feature of a successful legal system is that it is considered legitimate by the
people over whom it presides. For
it to be so considered, justice
must be seen to be done by those who adequately represent or reflect society. Where this is not the case, and the
judiciary is primarily constituted by a particular gender, or a particular
race, citizens may lose respect for the judiciary and the law, which in turn
undermines the legitimacy, moral force and efficacy of the legal system.
3.4
The HSF further submits that there “are only two
possible interpretations of the role that [section 174(2)] is meant to play in
the decision-making processes of the JSC.” It goes on to state as follows:
28. First, after the jurisdictional requirements in
section 174(1) have been satisfied, race and gender may operate as decisive factors. If there is a racial and/or gender
imbalance on the bench, the JSC is obliged to advise the appointment of that
candidate who best redresses this imbalance. An alternative interpretation is that race and gender
constitute two of many considerations that must be taken into account by the
JSC when it exercises its discretion in advising the President. The need for greater racial and gender
equality must be considered alongside other factors, such as a candidate’s
technical competence, temperament and communication skills.
29. It is clear, both textually and when regard is
had to the purpose of section 174(2), read in the context of section 174 and,
more broadly, the Constitution as a whole, that the second interpretation is to
be preferred.
3.5
The HSF further states that none of these factors, “including race and gender of a particular
candidate, will be decisive in all cases. Rather, they form a
basket of relevant considerations, in respect of which the JSC must
meaningfully apply its mind when advising the President on
appointments. The JSC is not
permitted to pick and choose. All
are relevant and all are material.” (Id. para. 35). The HSF further clarifies its position as follows:
37. Thus, for example, the importance of race and
gender to the appointment process will depend on the extent of the racial and
gender imbalance on the bench in South Africa at a given point in time. In a case where the bench is
overwhelmingly dominated by white males, the importance of appointing black and
female candidates to the bench will be greater than in a case where there is
improved demographic representation, albeit that the bench does not broadly
reflect the racial and gender composition of South Africa. Similarly, the
importance of one candidate’s technical competence relative to another will
depend on other factors such as the same two candidates’ relative judicial
temperament or writing skills.
3.6
In its grounds of review, the HSF focuses on the two
reasons given by the JSC “for the decision not to recommend Mr. Gauntlett for
appointment as a judge of the WCC.
They are concerned that such reasons include doubts about his “humility
and judicial temperament” and the belief that appointing “two white males” to
the WCC would do “violence” to the provisions of section 174(2) of the
Constitution.” (Id. p[ara. 40).
HSF then asserts that whilst “temperament and race and gender are
material relevant factors that must be considered by the JSC when exercising
its powers under section 174(6), there are many others that must be considered
as well. There is no evidence that
the JSC considered the many relevant factors delineated above.” (Id. at para.
41). HSF asseverates that there is
no evidence of any meaningful engagement with the “substantive content of
[Gauntlett’s] apparent skill and experience, or effort to balance these
attributes and other relevant factors that favour his appointment against those
that would count against him being appointed.” (Id.. at para.42). It adds that “there is no
suggestion that the JSC engaged in comparative analysis of the respective
strengths and weaknesses of the Candidates. Rather, it appears merely to have
considered the race and gender of the Candidates and the racial and gender
composition of the WCC, decided that more than one white male could not be
appointed to the WCC and then preferred Mr. Justice Rogers over Mr. Gauntlett
and Koen in making the Decision.
The deciding factor between Mr. Gauntlett and the candidate ultimately
appointed appears to have been temperament and humility.” (Id at para.44).
3.7
A closer
reading of the HSF Application actually suggests that Hoffman, in his mind,
rewrote, reconfigured and distorted the HSF complaint to suit his fancy. I am suggesting that the HSF
Application does not support his theory and the basis for his attack on Mogoeng
based on a number of issues raised in the HSF complaint and its litigation
posture. In its notice of motion
the HSF merely asked for an order declaring irrational the decision by the JSC
to appoint five men and women as judges of the Western Cape High Court and HSF
argues the decision not to advise President Jacob Zuma to appoint Nonkosi Saba,
Jeremy Gauntlett and Stephen Koen was irrational. According to the HSF the
appointment of the five judges who included amongst them a white male and a
white female is just as irrational as the decision not to appoint Saba (a black
African female) and Gauntlett and Koen (Both white males). In the alternative,
the foundation asked for an order declaring that the process followed by the
JSC before making the decision was unlawful, irrational and invalid. Contrary
to Hoffman, its application is not a jeremiad about Jeremy Gauntlett's
non-appointment and cannot on its face be deemed defence of white privilege.
3.8
Most important, the HSF expressly stated that it
supported the constitutional imperatives of judicial transformation. However, in
its view, there was a growing perception that talented candidates for judicial
appointment and advancement were being overlooked for reasons that were not
clear. The HSF wisely included unsuccessful black and white candidates who it
claims were victims of JSC irrational decison-making. This obviously goes against Hoffman's thesis and points to
the fact that his accusations of racism and sexism against the chief justice or
his misreading of his speech as attack on the HSF pending application is a
demonstrable lie deserving of heaviest of sanctions.
3.9
Although
HSF's interpretation of section 174(2) of the Constitution is, in my view,
misplaced the HSF is not arguing in defence of white male privilege as Hoffman
implies. The HSF is arguing that
the fact that the judiciary does not reflect the demographics of the country
can never be an insurmountable obstacle to 'the JSC advising the appointment of
a white and/or male candidate'. It argues that the race and gender of a
particular candidate can only ever form part of a 'basket of relevant
considerations, in respect of which the JSC must meaningfully apply its mind'.
The HSF is highly critical of the JSC's alleged lack of rigour and its failure
to consider the many relevant factors it outlines as consideration for
suitability to the Bench. These also include 'empathy, compassion and knowledge
of local communities', a good temperament sensitive to the emotional state of
litigants, while retaining a 'degree of robustness' when dealing with inept
lawyers in court, intellectual integrity and knowledge of the law, which it
deemed 'vital'.
3.10 What is clear is that Hoffman developed
his own extremist position in reaction to the Chief Justice's speech based on
emotions or gut feeling without reading the legal theory in the alleged
"pending" HSF case on which he bases his attack on Chief Justice Mogoeng. Bluntly stated, the HSF case does not
support Hoffman’s far-fetched and convoluted theory that the Chief Justice’s
speech was in reference to the HSF case. Nor does it support Hoffman’s wild
accusations that Mogoeng’s “speech is prejudiced against the stance of the HSF
and its arguments against the modus operandi of the JSC”; that the “content of
the speech is evidence of a contemptuous and carefully orchestrated attempt to
defeat the ends of justice by placing untoward and improper pressure on the
judges and courts that will hear the pending case brought by the HSF regarding
the functioning and role of the JSC”, that the “speech is in clear breach of
the requirement of section 165(3) of the Constitution in that it constitutes
interference with the functioning of the courts in the HSF matter in which the
Chief Justice cannot sit as he is chairman of the JSC and accordingly has a
conflict of interest.” The text
and clear unambiguous language of the HSF complaint refutes the paranoid
ramblings by Hoffman that the “content of the speech, coming as it does from
the Chief Justice, amounts to contempt of the said courts in that it seeks to
dictate the outcome of the HSF matter or at least to influence the nature of
the outcome by adopting a position that is controversial, contains a particular
interpretation of the Constitution that is unfavourable to the applicant in the
said matter , and which puts pressure on the courts to interpret the
Constitution in such a manner.”
3.11 While I
consider the HSF application to be flawed I must concede that it is stated in
respectful language and contains no attack on the JSC or personal attacks on
any of its members, including the Chief Justice. In paragraph 53 of the Application it is stated: "No
argument has been made regarding the substantive correctness of the Decision.
Nor has the relative merits of the individual candidates been traversed. This is because this case is not about the
candidates but about the legal process that was followed by the JSC when
reaching the Decision."
Accordingly, the HSF is not asking to have the JSC's decision set aside
- it seeks "only an order declaring the Decision Unlawful and /or
irrational. It doeds not ask that the Decision and the appointment of the
successful candidates be set aside and for it to be referred back to the JSC
for re-determination..." Id.
3.12 The HSF explicitly states in para.55 the
following: "The applicant has argued a nuanced case,
which relates principally to the manner in which the JSC engages in its
decision-making process." I have argued below that Hoffman attempts to
rewrite the HSF application to fit his racist paradigm and fancy in that he
takes a case with a "nuanced" argument and falsely imputes to the
litigants a legal theory they have not espoused and advocacy of causes they
have not endorsed. Hoffman’s actions are nothing short of hijacking a
plaintiff’s case for nefarious propaganda purposes in reckless disregard of the
rights of the litigants.
False attribution of certain claims to a litigant by an advocate who is
not involved in a matter is inimical to the administration of justice, unfairly
prejudices the parties to the lawsuit and is a form of interference which
irreparably damages the integrity of judicial proceedings. It intereferes with the
lawyer-client relationship and erodes clients’ confidence in their current
lawyers because such clients must inevitably wonder why their lawyers claim to
be pursuing a particular theory of the extant case while Hoffman argues that
the case is about alleged racism and discrimination against white males. This statement reflects a studied, careful
and premeditated attempt through a series of direct lies to influence the
outcome of the administration of justice. It involves not a passing mistake,
not an unfortunate and apparently uncharacteristic lapse but a studied and
deliberate attempt to hijack a pending case and to deflect and pervert the
course of justice. All these facts when taken as a whole reflect deeply on the
character of Hoffman. Some of his falsehoods and reckless statements were
committed at a time when he was pontificating about Judge President Hlophe’s
alleged intereference with the Constiotutional court judges. Some of the falsities against the Chief
Justice involve not just the allegations that he commented on a pending HSF
case, but they involve deliberate twisting of the facts to allege that the
Chief Justice’s speech about transformation was in reaction to the HSF
lawsuit. Hoffman achieves this
false narrative by conveniently denying the Chief Justice’s longstanding
advocacy of transformation which dates back to his nomination hearings. Hoffman’s allegations are of a
character and made in circumstances eliminating the possibility of mistake -
they reveal a clear unfitness to remain on the Roll of Advocates.
4.
Hoffman’s Activities, Publications in Newspapers
and Internet and Correspondence with Chief Justice Mogoeng and the JSC Reveal
Misconduct – They Reflect Studied, Careful and Premeditated Attempt Through a Series
of Deliberate Distortions and Lies to influence the outcome and Pervert the
administration of justice.
4.1
On 6 July 2013 Chief Justice Mogoeng attended the
Advocates for Transformation Annual General Meeting Dinner in Cape Town where
he delivered the “Duty to Transform” speech. He started off by noting that for “the overwhelming majority
of black South Africans the wounds and excruciating pain caused by centuries of
being subjected to psychological trauma and merciless “beatings” are still
fresh and sharp. He continued:
The poverty, lack of real
economic opportunities and the apparent resistance to change by a good number
of fellow South Africans, who benefitted tremendously from the excellent
educational and economic opportunities reserved exclusively for them by the
apartheid system, can only serve as a constant and rude reminder to the victims
of poverty and limited opportunities for career and professional
advancement. A reminder of what
the major cause of their suffering was and who the beneficiaries were. And when
they do remember, the question they are bound to ask themselves is, “has the
apartheid system really been dismantled, or has it only changed marginally or
has a grouping of its key operators metamorphosed into a movement that
masquerades as agents for the enforcement of constitutional compliance when
they are in fact a change resistance force?
Given the pain, the deprivation
and the dehumanization that the apartheid system was intended to cause and did
in fact bring about, it is of great importance that we do everything within our
power as South Africans of all races, to avert the dangers that a disguised
protection of white male privilege, at the expense of opening up opportunities
for women and black men, is loaded with.
4.2
It is significant that Chief Justice Mogoeng issued a
clarion call to “South Africans of all
races” to avert the dangers that a disguised protection of white male
privilege is loaded with. It is
intuitively obvious that maintaining white male domination or protecting it in
whatever disguised form is not only a threat to social cohesion and
nation-building but it is also unlawful and unconstitutional. Mogoeng lauded one of the “progressive
and giant steps taken by both the Attorneys’ Profession and the Advocates’
Profession” which is “the introduction of rotational leadership. This arrangement
had to be made because white male South Africans who, as recent media reports
have correctly shown, overwhelmingly dominate both professions and will be in
the majority for many years to come, would otherwise almost always be in the
leadership of these organisations.”
It is noteworthy that there is no indication that either the HSF
applicant or its lawyers are opposed to the “progressive and giant steps taken
by both the Attorneys’ Profession and the Advocates’ Profession” which is “the
introduction of rotational leadership.
4.3
Harping on a theme he consistently championed even before
his ascendancy to the helm of the judiciary and since his elevation, Chief
Justice Mogoeng stated:
Of concern to me is, knowing that
the apartheid system did, by design, empower white male lawyers and disadvantage
black and women legal practitioners, do these bodies and their individual
members have a plan and the willpower to transform the professions, not
cosmetically but radically. And by transformation I mean, among other things,
destroying whatever hurdles might still be standing in the way of many women
and black lawyers joining these professions, by consistently reminding government
departments, state-funded institutions and big business of the need to create
equal opportunities for all South African lawyers with a favourable disposition
towards women and black male practitioners.
4.4
Once again, there is no indication that the above
statement even obliquely refers to the HSF or its lawsuit. The Chief Justice then spoke about the
practical steps that could be taken to alleviate the situation adversely
affecting black and women legal practitioners. In cases “involving areas of law which white male senior
counsel are believed to be possessed of special skills which women and black
lawyers are, rightly or wrongly, believed not to have, black Attorneys and
junior Advocates should in the case of state-funded institutions be prioritized
for support and in the case of government departments and legislatures, black
junior Advocates and women Advocates should be affirmed. That way women and
black Attorneys would stay in the profession.” Mogoeng proposed as a solution the following:
Big business should help dispel
the apartheid myth that black and women practitioners only have the brains for
straightforward criminal cases and divorce matters. This goal will be achieved
by entrusting them with complex matters, at least as junior counsel and by
giving instructions to women and black Attorneys. Instructions and brief
allocation with particular regard to race and gender must be seriously
reconsidered.
You can check from the record of
appearances in the Constitutional Court. More than ninety percent of
appearances before that Court are white and male. Occasionally a junior would
be a white woman. Attorneys, senior and junior counsel seldom appear in that
court. My colleagues in other courts told me that the trend is similar in all
other courts in relation to matters of importance. It should therefore not be surprising that the attrition
rate of Attorneys and Advocates who are women and black men is said to be
disturbingly high. Needless to say, you need high quality work to grow and grow
faster. This is neither an encouragement for spoon-feeding or any entitlement
syndrome nor is it something to be apologetic about. It is an historic matter
of crucial importance which cries out for urgent attention.
4.5
Once again, there is no reference to the HSF or its
litigation posture in the above statement. There is no indication that the HSF has adopted a position
against the proposals made by Mogoeng.
Further, Chief Justice Mogoeng drew certain pertinent conclusions from
the legacy of apartheid and the “instructions-giving and briefing patterns
before the Constitutional Court.”
He stated that “it appears that South Africans are yet to appreciate
their duty to help transform the profession and by extension the Judiciary.” He continued:
No wonder we only hear voices
critical of transformation when matters affecting the JSC and its
recommendations are discussed. None of the personalities and NGO’s who speak
regularly and passionately about the perceived areas of concern about the JSC
processes and even litigate about them, have ever spoken with any, let alone
equal passion against the conservative apartheid-style instruction-giving and
briefing patterns. They seem to be more concerned about white men who are not
appointed and do not seem to be concerned about the reasons for not
recommending them for appointment.
4.6
Once again, the HSF has made it clear that it is not
one of the “voices critical of transformation” when “matters affecting the JSC
and its recommendation are discussed.” As pointed out above, the HSF expressly
and unequivocally states that it supports transformation, a fact which Hoffman
deliberately overlooks in his misguided quest to attribute legal theories and
race-based paradigm to the HSF.
4.7
The Chief Justice lamented the passive stance of the
“members of the organised profession” who “ought to lead the charge on the transformation
of the profession and the Judiciary”
but who “sadly…are conspicuous by their silence.” He stated that he “followed with much
interest the debates about briefing patterns recently. I expected many women
and black lawyers to speak out in support of Advocate Ntsebeza. To my
disappointment, he was literally a lone ranger or a soloist. It is time for a
brutal introspection by this and other lawyers’ associations, if they are to
remain relevant to the national constitutional agenda of delivering to
posterity, a transformed, reconciled and united rainbow nation.” Turning to the mission ahead, Mogoeng
told the AFT members: “You are the transformation agents. For this reason, this
body, the BLA,NADEL, SAWLA, IAWJ and other truly progressive organisations must
work together to defeat the resistance to transformation that is now embarked
upon with more vigour and boldness.”
Once again, nothing in the foregoing statement is directly or indirectly
critical of the HSF, its litigation posture and its cause.
4.8
Chief Justice Mogoeng dealt with developments which
“seem to suggest that war has been declared against transformation.” He stated:
When black men and women of all
races were appointed to higher courts for the first time, those opposed to
change voiced a concern about the so-called lowering of standards. The same
argument has changed tag a bit, lately. It was initially said that there was no
commitment by the JSC to gender representation. Suddenly, it changed to the
alleged bias against white men. Some of the advocates of gender representation
even nominated and openly fought for the appointment of a white man and inexplicably
jettisoned their campaign for gender representation. When “unwanted” white
males were appointed they were labeled executive-friendly.
These developments seem to
suggest that war has been declared against transformation. People are clutching
at straws to discredit the JSC. They seem to want the JSC they can dictate to.
The same people or organisations who are accusing the JSC of being controlled
by politicians are beginning to look like they want to control the JSC
themselves.
4.9
As shown convincingly above, the HSF has explicitly
distanced itself from any argument that it is part of the groups opposed to
change or those making the “lowering of standards” argument. Nothing in the HSF
court papers remotely suggests that it opposes the appointment of certain
“unwanted white males” or that it endorses labeling these individuals as
“executive-friendly.” In fact, paragraph 53 of the Application the HSF
unambiguously stated: "No argument has been made regarding the
substantive correctness of the Decision. Nor has the relative merits of the
individual candidates been traversed. This is because this case is not about the candidates but about the
legal process that was followed by the JSC when reaching the Decision." Hoffman’s characterization of the HSF
case as being part of developments suggesting “that war has been declared
against transformation” is empirically false and is merely a figment of
Hoffman’s imagination.
4.10 The Chief Justice concluded by issuing
an important clarion call to the advocates in attendance and others. He stated: “I have come to challenge you and other genuinely progressive bodies to
resist all efforts geared at the protection of white male dominance in the
professions and the Bench and the equation of the appointment of black and
women practitioners to the institutionalization of mediocrity.” Transformation “involves not only changes in the legal order, but also changes in the
composition of the institutions of society, which prior to 1994 where largely under the control of whites and, in
particular, white men.” Inevitably, transformation must confront the excuses
such as “lowering of standards’ or “merits” which are code words used by those
who oppose transformation to justify white male privilege. Clearly, the HSF in its complaint has
not adopted a position equating the “appointment
of black and women practitioners to the institutionalization of mediocrity.”
I reiterate that the HSF’s “nuanced” case eschews a discussion of the relative
merits of the individual candidates and the HSF has unequivocally stated that: “The HSF supports the constitutional
imperatives of judicial transformation.” That is a far cry from Hoffman’s
false attribution suggesting that HSF is in the category of groups viewed as
warriors against transformation.
4.11 To combat
the ideological premise equating the appointment of black and women
practitioners to the institutionalization of mediocrity, a paradigm shift is
required. As Judge Dennis Davis pointed out, in the debate on judicial
transformation, the concept of merit needed to be talked about in a
"nuanced" way.
4.12 Judge Davis
said positing merit versus transformation was a "problematic
discourse". Merit did not only mean "how much you know about Grotius
and Voet," he said. Merit included technical brilliance, but also included
"understanding the community, being able to put yourself in the shoes of
the other ... empathy for the litigants, an understanding of where the country
should go" — all qualities that were "absolutely essential" and
they “are part of merit." Davis said if you looked at merit in that way,
you would end up with quite a representative bench in the first place. He said
many of the apartheid judges were technically brilliant. He recalled talking to
the late administrative law expert Etienne Mureinik during the apartheid-era
state of emergency, saying that some of the judges on the Apellate Division had
to have been "technically brilliant to get such a perverted
judgment". Coincidentally, the
HSF has also accepted and articulated Davis’ view of merit as “nuanced” concept
in judicial transformation. As
stated above, the HSF agrees that these also include 'empathy, compassion and
knowledge of local communities', a good temperament sensitive to the emotional
state of litigants, while retaining a 'degree of robustness' when dealing with
inept lawyers in court, intellectual integrity and knowledge of the law, which
it deemed 'vital'. Again, that
express statement by the HSF militates strongly against the anti-transformation
caricatured image and viewpoint falsely attributed to it by Hoffman.
4.13 Chief
Justice Mogoeng warned that the “apparent discomfort with the progress we are
making in transforming the Judiciary, as if we are about to encroach into the no
go area of privileged interests, and the concomitant boldly declared struggle
for “white male” appointment, even if it would result in the perpetuation of
their historic over-representation, must be dealt with decisively.” He added: “You must no longer
allow this voice of resistance to be the only voice in the public domain. It
disseminates toxic inaccuracies which have the potential to cause some
reputational damage to our Judiciary nationally and abroad, as I learnt in
London last week.”
4.14 In London
at Chatham House Mogoeng had to deal allegations that there is “another group of great lawyers who have
never been appointed [to the Constitutional Court], and they appear to have
encountered difficulties during the interview process. Have they been singled out,
perhaps due to their political independence?” The toxic inaccuracies he talked about involved allegations
that so-called competent white lawyers are denied appointment either because of
a transformation agenda that is anti-white or because the JSC is
executive-minded and is inclined to appoint only “executive toys” instead of
lawyers renowned for their “political independence”. Mogoeng refuted this notion during his speech before AFT and
urged members to persevere in the face of the expected attacks whenever members
rose in defence of genuine transformation. He stated the following:
And for the record, many white
males have been recommended for appointment by the JSC over the years. It is
for them and those who know them better to say whether they are “executive
toys”and incompetent as alleged. The point to be emphasized though is that a
deliberate attempt is being made to delegitimize the JSC and through some scare
tactics intimidate or mock the JSC into recommending without proper reflection,
certain white men and at times certain women, for reasons best known to those
who are campaigning for them.
This illegitimate neo-political
campaign to have certain people appointed must be strongly opposed. We must all
use all available avenues to expose this retrogressive campaign and the danger
it poses to nation-building and reconciliation. But be warned, that engagement
is not for the faint-hearted. The defence of genuine transformation, as was the
case during apartheid, inevitably attracts mockery, being labeled conservative
and a tool of the Executive. Be ready for untold attacks from all sorts of
people projecting themselves as fiercely independent, impartial, progressive
analysts or highly respected professional commentators. Be ready to be trashed
by a well coordinated network of individuals and entities often pretending to
be working in isolation from each other.
Remember, during apartheid whenever you were a puppet or the powers
that-be thought you had the potential to be cajoled into becoming one, you were
addressed as ‘’n goeie man” or “good man”. Nowadays those who seem to have
arrogated to themselves the role of being masters of our destinies would label
or crown you “highly or well respected” or “progressive”. I need not tell you
what the innumerable antonyms of these expressions are. Don’t be lured by these
anti-transformation schemes. And
don’t be selfish. Use your privileged position of influence for the benefit of
the rainbow nation and posterity, but not in the furtherance of questionable
sectarian interests or agendas.
4.15. At no point
during the speech did Chief Justice Mogoeng ever make reference to the HSF or
its lawsuit. As explained below, a
fair reading of the HSF complaint actually refutes the notion that the HSF or
its cause can be viewed as anti-transformation as Hoffman suggests.
4.16. On 18 July 2013 Hoffman wrote a letter
to Chief Justice Mogoeng entitled “Re: Your AFT speech and our interaction in
The Hague.” The letter stated, amongst pother things, as follows: “2. You will have seen the public reactions to
your speech to the members of Advocates for Transformation in Cape Town on 6
July. In particular, and in case you missed them, I commend to your attention
the letter by Professor George Devenish published by the Cape Times on 15 July
and Legalbrief on 16 July and the earlier piece containing the reactions of the
CFCR published by Legalbrief and in other publications. “ Attached to Hoffman’s letter was an
article he ultimately published in the newspapers and on the website of his
organization, IFAISA. At the time
Hoffman claimed he “had considered
submitting the attached draft article for publication in the press, but the
gravity of the situation has given me cause for pause. Engaging constructively
with you seems to me to be preferable to escalating the existing confrontation.
“ Hoffman stated in para. 5 of
the letter: “Accordingly I write to you
in an effort to understand better your apparent descent into the political
arena, in which I believe you have no place, and in the hope that you will
reconsider your stance. I do this on a personal level and in private, rather
than via an unseemly spat in the media and before the applicable JSC committee.” Hoffman continued:
8.
It now pertinently appears that non-racism and non-sexism as foundational
values as well as considerations of gender and race provided for in C174(2) are
also open to differing interpretations. This is evidenced by the recent
resignation of Izak Smuts SC from the JSC and in various cases against the JSC
too, including the pending challenge to its modus operandi which is being
brought by the Helen Suzman Foundation. Unfair
discrimination against men who were once classified as “whites” is at the heart
of the issue.
9. May I be so bold as to venture
to suggest to you that it does not behove any Chief Justice anywhere to become
embroiled in the pros and cons of the political and legal arguments on matters
of this nature when it is clear that they will have to be finally adjudicated
in his or her court?
10. I am hopeful that upon mature
reflection, and after prayerful consideration, you will recognise that harm can
be done to the impartiality and independence of any court whose officers
descend into the arena of debate and contestation regarding matters of this
highly politicised and contentious nature.
11. While I readily concede that
it is not proper for you to adjudicate the HSF matter because you chair one of
the litigants in it, I nevertheless respectfully suggest that the public
perception created by the utterances you have made of late will do great harm
to your Court if not reconsidered and explained by you without delay.
4.17 Hoffman’s
letter of 18 July 2013 was misleading, disingenuous and dishonest. Clearly, Hoffman’s statement that “unfair
discrimination against men who were once classified as “whites” is at the
heart of the issue” is false insofar as it related to the HSF complaint.
4.18 Hoffman
makes reference to “public reactions” to the Chief Justice’s speech by
Professor George Devenish and the Center for Constitutional Rights. In a letter in the Business Day, ,
Professor George Devenish, stated amongst other things the following:
‘Bearing
in mind the CJ was speaking in his official capacity as the head of the
judiciary, I submit that both the content and tone of his address have serious
implications for judicial independence in South Africa.
In his address, the chief justice, without mentioning names,
uses emotional and powerful language in relation to those who are challenging
the modus operandi of the Judicial Service Commission (JSC) in relation to the
way it recommends candidates for appointment to the bench.
He is obviously referring to, inter alia, the Helen Suzman Foundation,
which has initiated litigation in this regard.
This also applies to retired
judge Johann Kriegler, who recently indicated that the NGO, Freedom Under the
Law, which he chairs, would challenge the manner in which the JSC operates if
this is not done by any other body or institution, since he considers the
commission is acting in flagrant conflict with the constitution.
Further, it is also alleged, by
the detractors of the JSC, that the commission does not merely discriminate
against white male applicants, but also against any boldly independent-minded
applicant jurists, black or white, male or female, who would act fearlessly in
interpreting and applying the provisions of the constitution and the bill of
rights, and thereby poses a threat to the executive regardless of any
consequences.
In making this statement, the chief
justice has with unrestrained and categorical language declared his allegiance
with and support for the JSC, against its detractors.
As a consequence of this
controversy, a battle royale is to be waged in the courts concerning the manner
of the appointment of judges by the JSC. This is the kind of discourse that
should occur and be welcomed in the liberal democracy that SA is.
But bearing in mind that the
controversy is both a legal and a political one, it is regrettable and
unfortunate that Judge Mogoeng has become embroiled in such a controversy.
It is a fundamental principle in
an independent and impartial judiciary that judges should avoid political and
other controversy at all costs, concerning which, they may in their judicial
capacities be called on to give judgment. When
this issue comes before the Constitutional Court, as it must inevitably do, the
chief justice will find himself in a forensically untenable situation and there
will be great pressure on him to recuse himself, since he has by his
unfortunate and intemperate public utterances manifestly prejudged the matter.
At the least, counsel for the Helen Suzman Foundation will, with cogent
justification, demand Judge Mogoeng’s recusal.
Further, Judge Mogoeng has, by his alignment and support for the JSC
against its detractors, done immeasurable harm to the independence and
impartiality of the judiciary, which is a cornerstone of democracy in SA
and of which he should be a manifest custodian and should not in any way
undermine.
4.19 As stated
herein, both Hoffman and Devenish falsely ascribe to the HSF views and
litigation position it has not endorsed or subscribed to. Hoffman knew that the notion that the chief justice will find himself “in a
forensically untenable situation and there will be great pressure on him to
recuse himself” and the “Helen Suzman Foundation will, with cogent
justification, demand Judge Mogoeng’s recusal” was legally nonsensical and
false. Hoffman “readily concede
that it is not proper for [the Chief Justice] to adjudicate the HSF matter
because you chair one of the litigants in it.” Hoffman nevertheless persists in
suggesting “that the public perception created by the utterances” the Chief
Justice has made “...will do great harm to your Court if not reconsidered and
explained by you without delay. “
The second basis for Devenish’s criticism was that the Chief Justice has
“by his alignment and support for the JSC
against its detractors, done immeasurable harm to the independence and
impartiality of the judiciary.” Hoffman’s reliance on this aspect of public
reaction is dishonest as well. By
virtue of his position as a Chief Justice and chairperson of the JSC, Chief
Justice Mogoeng is legally entitled to align himself with the JSC and to
support that body against its detractors. In fact defending the JSC against unwarranted attacks, which
also extend to attacks on judicial candidates ultimately selected for
appointment, is the Chief Justice’s job.
4.20 In his draft article Hoffman made a
false statement of fact and law and stated as follows:
“Some observers have been quick
to defend the Helen Suzman Foundation against the critical comments which the
Chief Justice has directed its way. lt should be borne in mind that the Chief
Justice is also the chair of the Judicial Service Commission, which the HSF has
sued. As chair, he will not, because of the other hat he wears as Chief
Justice, participate actively in the running of the case, the deposing of
affidavits in opposition and the arguing of the matter. But as Chief Justice, "first
among equals", he ought to be mindful of the perception he creates by
pronouncing upon the issues which his brother and sister justices will be
called upon to adjudicate in the matter. lt is so that the Chief Justice is too
conflicted to sit in the case because he is chair of the JSC, but that ought not to serve as an excuse for his
getting to air views about the interpretation of the Constitution which are at
odds with the line of argument advanced by the HSF.
4.21 Hoffman’s
statements are easily shown to be false and dishonest. It is factually untrue that the Chief
Justice has directed critical comments against the HSF – he never mentioned the
HSF at any time during his speech.
As explained above, the HSF’s complaint which is based on a nuanced
approach and does not fit within the ambit of what might remotely be considered
anti-transformation war. In fact,
HSF explicitly states that it supports transformation. Hoffman has arrogated to himself the
right to rewrite the HSF or to give it a distorted interpretation to suit his
fancy or his racist narrative.
His claim that the Chief Justice has directed critical comments towards
HSF is not supported by any fair reading of both the Chief Justice’s speech and
the text of the HSF complaint.
This artificial claim was simply created by Hoffman to buttress his
false charges that the Chief Justice has commented on a pending case. Once again, even if Hoffman genuinely
believed his own fanciful narrative to be true, it would be unethical for him
to continue engaging the Chief Justice on this matter and to request that he
“reconsider his stance” on a mater Hoffman claims was pending before the
courts.
4.22 Assuming the Chief Justice was guilty of
violating the sub judice rule or any other rule prohibiting comments on the
merits of pending cases as alleged, Hoffman would still be guilty of
compounding that offence by seeking a discussion with the Chief Justice and by
publishing in the newspapers the statements commenting on the merits of both
the alleged conflict of interests on the part of the Chief Justice justifying
his recusal and the intention of the lawyers to seek a recusal.
4.23 Without
question, Hoffman’s statement that the Chief Justice aired “views about the interpretation of the Constitution which are at odds
with the line of argument advanced by the HSF” is a comment on the merits
of the pending HSF case. See, In re Boston’s Children First, 244 F.3d
164 (1st Cir. 2001) where U.S. District Court Judge Nancy Gertner told the
Boston Herald newspaper that a school discrimination case pending in her
courtroom was “more complex” than a similar lawsuit before another judge, she
was disqualified by a federal court of appeals in Boston. The appeals court
said there was no evidence that Gertner was biased, and acknowledged that she
gave the interview to refute inaccurate statements made by an attorney. But the
court found that her comparison of the complexity of two cases was a comment
“on the merits,” in violation of Canon 3A(6) which requires a judge to avoid
public comment on the merits of a pending or impending action. Hoffman’s letter to the
Chief Justice and the newspaper article were undoubtedly comments on the merits
of a pending case and are therefore sanctionable.
4.24 Hoffman’s
attempt to invoke the Devenish letter as a basis to criticize the Chief Justice
is a transparent smokescreen and disingenuous attempt to give legitimacy to his
own bigoted views. Hoffman’s
action in sending letter accompanied by a draft newspaper article fits neatly
within the definition of and constitutes an attempted extortion. The crime of extortion has been described as follows:
“Extortion consists in obtaining
from another some advantage by unlawfully and intentionally subjecting him to
pressure which induces him to submit to the taking.” Milton : South African Criminal Law and Procedure (3rd edition)
volume 2 at 681. There is some
debate whether the threat of prosecution or civil proceedings unless the
advantage is obtained, is unlawful in circumstances where civil or criminal
prosecution may be justified. (The threat of defamation to extract an advantage
or accelerated payment is clearly unlawful. S v Ngqandu 1939 EDL 213; R
v G 1938 AD 246.). The
advantage sought by Hoffman here was that the Chief Justice must “reconsider
his stance” meaning that he should desist from performing his lawful duties and
speaking in favour of transformation and defending the JSC against its
detractors. If the Chief Justice
failed to “reconsider his stance” Hoffman threatened to publish a newspaper
article in which he alleges amongst other things, that the Chief Justice had
committed gross judicial misconduct warranting impeachment. Hoffman also made reference in the
letter to a JSC misconduct complaint he considered filing.
4.25 Given that
the speech had already been delivered, it is quiet obvious that Hoffman could
not reasonably have believed that a reconsideration of the Chief Justice’s
stance would undo the alleged damage. Nor could Hoffman reasonably have
believed that the Chief Justice’s reconsideration would avoid the “forensically untenable situation” and the
potential “pressure on him to recuse himself” in the HSF matter. By falsely characterizing the Chief
Justice’s speech as a comment on a pending HSF matter, Hoffman ensured that the
Chief Justice could not answer him back or engage him in a discussion on the
substantive issues raised in his letter and draft article. Hoffman sought to mouse-trap the Chief
Justice through his shenanigans here- if the Chief Justice tried to engage him
on the substantive issues including merits about whether he had indeed
criticized the HSF and whether his views were actually at odds with the
argument advanced in Court by the HSF, the Chief Justice would be accused of
compounding the initial violation and commenting on the merits of a pending
case. If the Chief Justice acts in
a reserved manner and chooses not to engage Hoffman on the substatntive issues,
Hoffman would use that as a license to publish his distorted and false allegations
against the Chief Justice. The latter
is exactly what Hoffman opted to do. Even worse, notwithstanding his claim that
the pending HSF matter was prejudiced by the Chief Justice’s remarks, Hoffman
further sought to engage the Chief Justice in discussions about the very same
matter – he demanded that he reconsider his stance and explain his utterances.
Hoffman set the Chief Justice up as follows: He refers him to and drew his
attention to an article accusing him of
“obviously referring to the Helen Suzman Foundation, which has initiated
litigation in this regard.” He then demands that the Chief Justice comment or
perhaps explain his “stance” on the matter or else face JSC impeachment
process.
4.26 This is made clear by Hoffman’s JSC
Complaint which, states, amongst other things:
5. The content of the speech is a
clear breach of the constitutional duty of the Chief Justice to act without
fear, favour or prejudice in that it favours the current practices of the JSC,
over which the Chief Justice is meant to preside in even handed fashion as
chairman . The speech is prejudiced against the stance of the HSF and its
arguments against the modus operandi of the JSC and is fearful of the "key
operators" (whoever they may be) to whom reference is made in the speech.
6. The content of the speech is
evidence of a contemptuous and carefully orchestrated attempt to defeat the ends of justice by placing
untoward and improper pressure on the judges and courts that will hear the
pending case brought by the HSF regarding the functioning and role of the JSC.
The speech is in clear breach of the requirement of section 165(3) of the
Constitution in that it constitutes
interference with the functioning of the courts in the HSF matter in which the
Chief Justice cannot sit as he is chairman of the JSC and accordingly has a
conflict of interest.
7. The content of the speech,
coming as it does from the Chief Justice, amounts to contempt of the said
courts in that it seeks to dictate the
outcome of the HSF matter or at least to influence the nature of the outcome by
adopting a position that is controversial, contains a particular interpretation
of the Constitution that is unfavourable to the applicant in the said matter
, and which puts pressure on the courts to interpret the Constitution in such a
manner.
4.27 Given
Hoffman’s own unequivocal statement that he viewed the Chief Justice’s
utterances as directly related to a pending case, Hoffman’s conduct in writing
to the Chief Justice about the matter and seeking a discussion of the
substantive issues or reconsideration of his “stance” was unprofessional,
unethical, and amounted to misconduct and extortionate attempts which render
him unfit to remain an advocate. Hoffman, for his own aggrandizement, attempted
to get the Chief Justice to discuss a matter or his stance in regard to a
matter Hoffman knew was pending before the Courts. It does not matter that Hoffman is actually wrong in his
assessment that the Chief Justice’s speech offended the sub judice rule. What matters is that Hoffman
subjectively believed that the Chief Justice had violated the judicial ethical
rules and that the “speech is prejudiced against the stance of the HSF and its
arguments against the modus operandi of the JSC.” Given his belief, Hoffman was duty-bound as an officer of
the Court to desist from any attempt to discuss the matter with the Chief
Justice directly or publicly commenting on it through the newspapers. As if to
emphasis the extortionate nature of his demands, Hoffman informs the Chief
Justice as follows:
“3. Kindly
treat this request as a matter of urgency. My rights to publish the attached
and to complain to the JSC that your conduct reflected in the attached is all
evidence of your bringing your high office and the judiciary into disrepute
must of necessity remain reserved.”
4.28 Further
acts of professional misconduct, extortionate demands and unethical conduct on
Hoffman’s part are discernible from the letter of 18 July 2013. Alluding to his future intent to seek a
recusal of the Chief Justice in all cases in which he appears as counsel Hoffman
states the following:
For my part, I am in honour and professionally bound to inform any client I represent in
your Court of the words which fell from your lips in The Hague when we
conversed briefly at the beginning of the WJF IV reception last Monday. Those
whom I represent in your Court may or may not instruct me to apply for your
recusal on the basis of what you said to me, as recorded in the attached draft
article. This would depend upon whether they reasonably apprehend bias against
me for what you call my “challenges” in the remark you made to me. I do so
apprehend, with great concern and considerable disturbance of my equanimity
given that well-advised clients may quite reasonably seek other counsel.
This needs to be dealt with sensibly by both of us. I am open to any suggestions you may have in this regard. My question
is: does your remark mean that I have to consider a recusal application in
respect of you whenever I am due to appear in your Court?
4.29 It is
astounding that on the basis of his own selfish interest and desire not to lose
clients, Hoffman seeks to strike a private bargain with the Chief Justice and
is “open to any suggestion” the Chief Justice may have in this regard. He purports to seek an answer to
whether he would have to “consider a
recusal application in respect of you whenever I am due to appear in your Court?”
Hoffman’s comments are not innocuous, they are a deliberate and calculated
strategy to affect the composition of the Constitutional Court in future cases
Hoffman is likely to bring before the Court. As evidence supporting this assertion, I point out the
following: At the time of writing, Hoffman was actively involved as counsel in
another “Glenister” case or a challenge to the Hawks legislation pending before
the Western Cape High Court. Revealingly, his newspaper article
accompanying the letter to the Chief Justice states:
“The Legal Practice Bill, the
secrecy legislation, the functioning of the JSC and the Hawks legislation are
all likely to be challenged in the Constitutional Court ere long. The facts set out above suggest that the
Chief Justice will have to recuse himself in all of these matters due to the
clear perception of political bias on display in his utterances. He appears
to be informed by the tenets of a different value system to that embodied in
the Constitution.”
4.30 Given that
Hoffman was already involved in a matter involving the Hawks legislation, he
should have candidly disclosed that fact to the Chief Justice. At a minimum, Hoffman should have disclosed
that he was actively involved in a case involving the very issues he envisaged
would be litigated in the Concourt.
Given that pending cases (HSF) and Hawks legislation challenge were
implicated by Hoffman’s correspondence with the Chief Justice, Hoffman’s
attempts seem to be a devious ploy to lure the Chief Justice into a discussion
of the “recusal” merits of pending cases which Hoffman assiduously kept hidden
from the Chief Justice. Viewed
with this prism, Hoffman’s actions are cheap self-serving stratagems calculated
to obtain an unfair advantage over his opponents, actual and potential, in
cases that would serve before the Concourt in the future.
4.31 The Bar Council must scrutinize
Hoffman’s conduct in light of the following rationale. In Bernert
v Absa Bank Ltd [2010] ZACC 28; 2011 (3) SA 92 (CC); 2011 (4) BCLR 329
(CC), the Constitutional Court explained that a claim of an apprehension of
bias is assessed with regard to the presumption of judicial impartiality and
the double-requirement of reasonableness.
About the presumption, the Concourt said:
“The presumption
of impartiality and the double-requirement of reasonableness underscore the formidable nature of the burden resting upon
the litigant who alleges bias or its apprehension. The idea
is not to permit a disgruntled litigant to successfully complain of bias simply
because the judicial officer has ruled against him or her. Nor should litigants be encouraged to
believe that, by seeking the disqualification of a judicial officer, they will
have their case heard by another judicial officer who is likely to decide the
case in their favour. Judicial
officers have a duty to sit in all cases in which they are not disqualified
from sitting. This flows from
their duty to exercise their judicial functions. As has been rightly observed, ‘[j]udges do not choose their
cases; and litigants do not choose their judges.‘ An application for recusal should not prevail unless it is
based on substantial grounds for contending a reasonable apprehension of bias.”
Id. at para.35.
(Footnotes omitted.)
4.32 The Bar
Council must take into account that Hoffman was not writing on a pristine page
– his client Glenister had received an adverse opinion from Mogoeng in a case
preceding the current Hawks litigation matter. Hoffman asserts that the “Legal
Practice Bill, the secrecy legislation, the functioning of the JSC and the
Hawks legislation are all likely to be challenged in the Constitutional Court
ere long.” Given his status as current
counsel for Glenister in a live case, Hoffman’s actions in raising potential
bias and recusal issues with the Chief Justice amounts to a blatant attempt to
obtain an unfair advantage over his opponents. Without any notice to them, he
provokes a discussion with the Chief Justice about the potential merits of his
recusal application he is likely to file when the Hawks legislation challenge
case serves before the Constitutional Court. Should the Chief Justice agree with him and assure him of
the recusal he seeks, Hoffman would have succeeded in not only obtaining a
change in the composition of the Concourt bench for his cases in advance but he
would have effectively chosen his judges and managed to put his opponents at a
substantial disadvantage. Hoffman
knew that bias claims are not only fact-driven; they are highly fact-specific.
A claim based on the adjudicative partiality of a court must therefore be based
on facts substantial enough to satisfy the requirements of the fair-minded
reasonable observer. The
connection Hoffman seeks to establish between the “Legal Practice Bill, the
secrecy legislation, the functioning of the JSC and the Hawks legislation” on
the one hand and the alleged bias of the Chief Justice is simply non-existent
and far-fetched. In any event such
matters are not discussed based on speculations, hypothetical scenarios and
unsubstantiated fears. They are
properly raised when the case is presented before the court. As such they cannot be the subject of
informal discussion or bargaining with the judge accused of bias andcertainly
may not be done many months ahead of time and before an appeal is presented to
the Concourt.
4.33 On 25 July
2013 the Office of the Chief Justice replied to the letter from Hoffman via an
official, and invited Hoffman to "forge ahead" as he saw fit.
4.34 On 27 July 2013 Hoffman caused a revised
version of the draft article to be published in the Sunday Times newspaper. Hoffman’s article was entitled “Mogoeng: a most unsuitable Chief justice.” In it Hoffman reiterates his
accusations against the Chief Justice and states that it “is unthinkable that any chief justice of South Africa should evince
such bias and malice, both of which have no place in any proper judge.” Hoffman claims that the poor and the cynical are
questioning the legitimacy of the bench and “its affirmative action chickens are coming home to roost.” He claims “recent surveys shows that on
the watch of the chief justice the probity and integrity of the judiciary has
declined in the eyes of those polled.
While the chief justice continues to deliver the type of speech he made
in Cape Town, expect the reputation of the judiciary to suffer further damage.”
Once again Hoffman added: “The Legal Practice Bill, secrecy legislation,
functioning of the JSC and Hawks legislation are all likely to be
challenged in the Constitutional Court before long. The facts set out
in this article suggest that the chief justice will have to recuse himself in
all these matters owing to the clear perception of political bias in his
utterances.”
4.35 On 5 August
2013 Hoffman filed a complaint of judicial misconduct against Mogoeng with the
JSC. The facts on which the complaint is
based relate essentially to the address made by the Chief Justice on 6 July
2013 at a formal dinner of the Advocates for Transformation. The allegations
made in the complaint include that of contempt of court as well as attempting
to defeat the ends of justice which it is alleged constitutes gross misconduct
justifying impeachment. Furthermore, “Hoffman alleged that in his address the
Chief Justice had launched 'a racist and sexist attack on white male
lawyers' and in so doing he had publically commented on issues that
required to be adjudicated on by the courts, which was tantamount to
interference in the operation of the judiciary. In his address the Chief
Justice, without mentioning names, uses very emotional and powerful language in
relation to those persons who are challenging the modus operandi of the
Judicial Service Commission (JSC) in relation to the way it recommends
candidates for appointment to the Bench. He is
obviously referring to, inter alia, the Helen Suzman Foundation, which has
initiated litigation in the courts in this regard.”
4.36 Hoffman
alleged that by publicly making and disseminating the speech delivered to AFT, “the
Chief Justice brought the judiciary of South Africa and the high office which
he holds into disrepute in that he descended into the arena of contestation and
controversy in respect of issues which are pending in the High Court and which,
in the light of their constitutional nature, are likely to require final
determination in the Constitutional Court.” It is interesting that Hoffman does not see anything wrong
with him initiating communication with the Chief Justice and seeking a
discussion of the very same “pending” matters he asserts the Chief Justice
should not have discussed with members of the AFT.
4.37 Hoffman
asseverates that the Chief Justice “involved himself in the politics and policy
aspects of affirmative action measures in a manner unbecoming of a sitting judge
in that he adopted a position on various political questions and matters of
policy in a manner which undermined the proper function, the standing and the
integrity of the judiciary.” He also alleges that “the stance adopted by the Chief Justice in the speech is a
legally untenable interpretation of the provisions of section 174(2) of the
Constitution and constitutes proscribed unfair discrimination against
"white" male lawyers including, but not limited to, those who are or
may become candidates for the judiciary.”
4.38 Hoffman
contends that the speech of the Chief Justice “strikes at the heart of the
independence and impartiality of the courts. lt also impacts negatively on
their dignity and effectiveness in breach of the requirements of section 165(4)
ofthe Constitution.” He made other
allegations about the Chief Justice’s speech as follows:
5. The content of the speech is a
clear breach of the constitutional duty of the Chief Justice to act without
fear, favour or prejudice in that it favours the current practice s ofthe JSC,
over which the Chief Justice is meant to preside in even handed fashion as
chairman . The speech is prejudiced against the stance of the HSF and its
arguments against the modus operandi of the JSC and is fearful of the "key
operators" (whoever they may be) to whom reference is made in the speech.
6. The content of the speech is
evidence of a contemptuous and carefully
orchestrated attempt to defeat the ends of justice by placing untoward and
improper pressure on the judges and courts that will hear the pending case
brought by the HSF regarding the functioning and role ofthe JSC. The speech is
in clear breach of the requirement of section 165(3) of the Constitution in
that it constitutes interference with the functioning of the courts in the HSF
matter in which the Chief Justice cannot sit as he is chairman of the JSC and
accordingly has a conflict of interest.
7. The content of the speech,
coming as it does from the Chief Justice, amounts to contempt of the said
courts in that it seeks to dictate the outcome of the HSF matter or at least to
influence the nature of the outcome by adopting a position that 1s
controversial, contains a particular interpretation of the Constitution that 1s
unfavourable to the applicant in the said matter , and which puts pressure on
the courts to interpret the Constitution in such a manner.
8. It is in conflict with the role
and function of the Chief Justice (or any other sitting judge) to descend into
the political arena in the way in which the Chief Justice has done in the
speech. By doing so he has breached the Code of Judicial Conduct for Judges and
has brought the judiciary into disrepute.
4.39 Hoffman
summed up his allegations of criminal wrongdoing by the Chief Justice as
follows: He stated that in summary, the Chief Justice has, by his conduct, made
himself guilty of:
13.1 Contempt of court;
13.2 Attempting to defeat
the ends of justice;
13.3 Bringing the judiciary
into disrepute;
13.4 Breaches of the Code of
Judicial Conduct for Judges;
13.5 Infringing the
constitutional rights of the complainant.
14. The criminal aspects concerning contempt of
court and attempting to defeat the ends of justice and the breaches of the
Constitution set out above, whether taken separately or cumulatively,
constitute gross misconduct as contemplated in section 177(1)(a) of the
Constitution, and justify the impeachment of the Chief Justice. In the event,
however, that the JSC forms the view that the Chief Justice had no
understanding of the nature, gravity and consequences of his action in making
the speech, it is submitted in the alternative that his conduct displayed gross
incompetence as contemplated in section 177(1)(a) of the Constitution. Such a
finding too would justify his removal from office.
4.40 In the same JSC complaint, Hoffman revisited
his allegations that on 8 July 2013, in The Hague, the Chief Justice told
Hoffman that: "you can continue to
challenge me, but you will continue to be frustrated." Predictably, Hoffman has failed to
reveal the full context of his discussion with the Chief Justice and has not
disclosed what he said to the Chief Justice to provoke the response he
allegedly received. Hoffman claims
that the remark “made by the Chief Justice … in The Hague evidences bias and
malice toward the complainant and is prejudicial to his professional career
insofar as he specialises in constitutional work and frequently appears in or
instructs in matters which are heard in the Constitutional Court over which the
Chief Justice presides. The remark raises a reasonable apprehension of bias
against the complainant on the part of the Chief Justice, an apprehension that
is fortified by the nature and content of the discourteous response of the
Chief Justice, via a functionary in his office, to the personal letter written
to him by the complainant…”
4.41 Hoffman
then reveals his real intentions and motives behind the bizarre series of
public statements he made about the Chief Justice. He asserts: “In these circumstances there are prima facie grounds to
apply for the recusal of the Chief Justice in all matters in which the
complainant is involved, whether as counsel, amicus, applicant or
respondent or as a representative of the Institute for Accountability in Southern
Africa , of which the complainant is a director. This deleteriously affects the
right of access to courts which is guaranteed to all in terms of section 34 of
the Bill of Rights as regards the complainant's clients, the Institute for
Accountability and the complainant himself.” He further claims that his rights
to “dignity, the right not to be unfairly discriminated against , the rights to
psychological integrity , freedom of opinion, freedom of speech, freedom to
choose a profession and the right to fair labour practices of the complainant
are all infringed by the remark made.”
4.42 Hoffman further alleges that the Chief
Justice's “curt and dismissive relayed response to the olive branch proffered
by the complainant in the letter … exacerbates and compounds the infringement
of the said rights and confirms the
malice harboured by the Chief Justice toward the complainant, malice which has
been festering since the complainant was critical of the readiness of the Chief
Justice for the high office he holds and corresponded with him in regard to
points of clarification of his values, position on important constitutional
issues, and track record , all of which were not fully dealt with during the
interview process in respect of the Chief Justice. This correspondence is
on the website page titled "Chief Justice" at www.ifaisa .org - the Chief Justice declined to answer
pertinent questions raised by the complainant in the said correspondence and
did not respond positively to entreaties to reconsider his position.”
4.43 On 9
September 2013, the Judicial Conduct Committee(JCC) of the JSC decided to
dismiss Hoffman’s complaint as it does not disclose any of the grounds set out
in section 14(4) of the Judicial Service Commission Act, 1994 as amended. The JCC recognized that Clause 10(1)
discourages judges from engaging in a public debate about a case. However, it
ruled that the subject of the chief justice’s speech was “not a case but an issue that had been publicly debated for a long time.
The institution of the HSF case did not have the effect of stopping that debate
. Moreover the issue is a practical, on-going one for the JSC , which it will
continue to grapple with notwithstanding the pending case.” Further, the
JCC ruled that Clause 10(7) recognises that a judge may participate in a public
debate about matters affecting legal profession and judiciary but says that he
must do so in a manner that may not undermine the standing and integrity of the
judiciary. Accordingly, it “was perfectly
legitimate for the [chief justice] to participate
in a debate about transformation of the judiciary and to express his views on
what he perceives to be resistance to it. His frankly expressed views were
bound to sit uncomfortably with sections of the legal profession and the
judiciary but that cannot be said to undermine the standing and integrity of the
judiciary.”
4.44 Furthermore, the JCC The JCT dismissed
Advocate Paul Hoffman’s complaint of “bringing the judiciary into disrepute” against
Mogoeng as “rather disingenuous” and
“simply far-fetched”. The JCC ruled that the subject of
Mogoeng’s speech was “a matter of great public interest not only to the legal
profession and judiciary but also to the country as a whole, namely,
transformation of the legal profession and the judiciary. In particular, it
touched on the sensitive argument about the JSC's perceived policy against
appointment of white males to the judiciary.” Given his position as head of the judiciary “a public debate
about transformation of the judiciary is one that he was not only entitled to
participate in but also one that he could
not avoid. As head of the JSC, he was not only entitled to articulate the
views and position of this body on the matter but also to defend it. By
its very nature, touching as it does on sensitive constitutional issues of race
and gender, the debate was bound to have political connotations. The
complainant's contention that by engaging in such debate the respondent
descended into the political arena is rather disingenuous.” (My emphasis).
4.45 Regarding
Hoffman’s “contempt of court and attempting to defeat the ends of justice”
allegations, the JCC rejected that as baseless. Hoffman had complained to the JSC that Mogoeng’s speech
amounted to racism, arguing that Mogoeng had brought the judiciary into
disrepute and was guilty of contempt of court, given that the Helen Suzman
Foundation has launched a court case about the weight the JSC attaches to
transformation when appointing judges.
The JCC ruled: “The complainant seems to suggest that with the
institution of the HSF case the debates around the issues raised therein should
come to an end until the case is decided. This
cannot be correct. lt is noteworthy that not once did the respondent mention
such case in his speech. There is therefore no basis for this complaint.”
4.46 The JCC
also gave short-shrift to Hoffman’s complaint about the “utterance in The Hague.” It proceeded “on the assumption that
the [chief justice] did utter the words attributed to him. lt is noteworthy that the complainant does not give the background
against which the remark was made. However, in his letter to the respondent
dated 18 June 2013 the complainant hints
at an ongoing confrontation with the respondent.” The JCC noted that Hoffman “discloses that he had been critical of the readiness of the respondent
for the office of Chief Justice and that he had addressed a correspondence to
the respondent demanding clarification on matters relating to his fitness for
that office. lt is indeed shocking to hear that an advocate could write letters to a
sitting judge demanding that the judge explains his fitness for office.
This explains why the respondent did not want to exchange any further
correspondence with the complainant.”
The JCC concluded that “in the absence of the context in which the words
were uttered, the remark remains meaningless . The complaint that the remark constitutes a violation of some or other
constitutional right is simply far fetched. lt is equally far fetched to
complain that the respondent's refusal to engage in correspondence with the
complainant is proof of bias and malice towards the complainant. The
complainant cannot engage in what appears to be provocative conduct towards the
respondent and then turn around and complain that the resultant confrontation
will prejudice his future appearances before the Constitutional Court.” The JCC summarily dismiss the complaint
in its entirety in terms of section 15(2).
5.
Cumulatively, Hoffman’s
Series of Correspondence with and about the Chief Justice, Newspaper
Publications, and the JSC Complaint Constitute Attempts to Improperly Influence
the Chief Justice, Interference with Chief Justice Mogoeng’s Performance of
Judicial Functions and A Threat to the Administration of Justice.
5.1
South Africa is a democratic state, founded on certain
values. These include constitutional supremacy and the rule of law. This is
stated in section 1 of our Constitution. The judicial system is an
indispensable component of our constitutional democracy. In terms of section
165 of the Constitution the courts are independent and subject only to the
Constitution and the law, which they must apply impartially and without fear,
favour or prejudice. No person or organ of state may interfere with the
functioning of the courts. Organs of state must assist and protect the courts
to ensure the independence, impartiality, dignity, accessibility and
effectiveness of the Courts.
5.2
Each judge or acting judge is required by item 6 of
schedule 2 of the Constitution, on the assumption of office, to swear an oath
or solemnly affirm that she or he will uphold and protect the Constitution and
will administer justice to all persons alike without fear, favour or prejudice,
in accordance with the Constitution and the law. Other judicial officers or
acting judicial officers must swear or affirm in terms of national legislation.
5.3
Any attempt to influence any judge outside proper
court proceedings therefore not only violates the specific provisions of the
Constitution regarding the role and function of courts, but also threatens the
administration of justice in our country and indeed the democratic nature of
the state. Public confidence in the integrity of the courts is of crucial
importance for our constitutional democracy and may not be jeopardised.
5.4
The first threshold issue that must be answered here
is whether the Chief Justice as a judge and leader of the judiciary has a duty,
right and responsibility to speak on matters of judicial transformation in
general and in defence of JSC decisions in particular. And if so, do extortionate threats of
impeachment, defamatory accusations of racism in letters directed to him and in
newspapers and accusations of criminal wrongdoing, other subtle pressures and
attempts to goad him into discussing specific pending cases, the HSF and the
Hawks litigation, constitute violations of Section 165 of the Constitution?
5.5
The right and duty of the Chief Justice and other
judges to speak publicly on matters concerning the administration of justice,
judicial independence and human rights is firmly anchored in our
constitution. The supremacy of the
Constitution, the rule of law, and the rights and freedoms enshrined in the
Bill of Rights are the foundation of the democracy established by the
Constitution. Section 165(1)
of the Constitution provides that the judicial authority of the Republic vests
in the courts and section 165(2) of the Constitution provides that the courts
are independent and subject only to the Constitution and the law, which they
must apply without fear, favour or prejudice. Section 174(8) of the Constitution provides that before
judicial officers begin to perform their functions, they must take an oath, or
affirm, in accordance with paragraph 6(1) of Schedule 2, that they “will
uphold and protect the Constitution and the human rights entrenched in it, and
will administer justice to all persons alike without fear, favour or prejudice,
in accordance with the Constitution and the law.”
5.6
In fact, judges like Edwin Cameron who have publicly
spoken out, criticized government and lectured about human rights issues are
acting in fulfillment of their constitutional obligations. The duty to uphold and protect the
Constitution and the human rights entrenched in it cannot be viewed narrowly
through the prism of litigation involving adversarial proceedings in court. As an experienced advocate,
Hoffman knows this truism and has acquiesced in and supported the right of
white judges to speak on diverse matters such as lesbian and gay rights,
transformation in the judiciary and criticism of the JSC and alleged political
interference from parliament or the executive.
5.7
The right and duty of our judiciary to speak out must
be viewed in the context of transformative constitutionalism and our apartheid
past. The apartheid judiciary
adopted covenient and self-imposed restraints and eschewed socially just
decisions that would have prevented gross human rights violations. A cursory review of cases arising under
apartheid security laws reveals not just that the apartheid judiciary lacked
substantive commitment to individual human rights and government accountability
but that the apartheid judiciary eagerly abdicated its responsibilities and
favored unfettered executive power.
Judges were able to rationalise their actions by asserting that law was
distinct from morality.
5.8
By contrast, in the constitutional era our judges cannot,
consistent with their sworn obligations, act like bloodless automatons and
adopt positions of moral ambivalence when human rights are violated or the
constitutions itself is under threat.
Along with the legislature, the executive and all organs of state, the
post-apartheid judiciary is bound by the Constitution to uphold the
constitutional values. The judiciary is expected to 'promote the values that
underlie an open and democratic society based on human dignity, equality and
freedom and it is required always to 'promote the spirit, purport and objects
of the Bill of Rights.
5.9
A pertinent preliminary issue that must be
interrogated in specific regard to Chief Justice Mogoeng’s speech is whether
transformation in the judiciary is a constitutional value and whether in
speaking on this subject the Chief Justice is acting pursuant to his duty as a
judge to “promote the values that underlie an open and democratic society based
on human dignity, equality and freedom.”
Is he acting in consonance with the constitutional requirement always to
“promote the spirit, purport and objects of the Bill of Rights.” The answer to all these questions is in
the affirmative. The constitutional imperative to ensure
that the judiciary reflects broadly the racial and gender composition of South
Africa is clearly established.
5.10
A definitive answer to whether or not the Chief Justice is promoting “the values
that underlie an open and democratic society based on human dignity, equality
and freedom” is context-driven and requires an analysis of the content of the
speeches he has made, the occasion on which he spoke, the audience to which he
spoke, the relevance of the subject to his judicial duties or constitutional
responsibilities and taking into account his judicial philosophy and rights to
freedom of speech and association.
According to ordinary dictionary meaning, to promote is to contribute to
the growth or prosperity of
something, to publicise, advertise, help the progress of, help forward,
further, advance, urge forward. Against
this background, a cursory survey of Mogoeng’s speeches reveals that he has
always acted in a manner consistent with his constitutional mandate. Those who attempt to silence him are
violating our constitution and interfering with the performance of his
functions and duties.
5.11
Chief Justice Mogoeng’s speeches in favour of
transformation are not of recent vintage and are not some publicity stunt or
gimmick on his part - he has been consistent in his unabashed, brutally frank
and principled stance on transformation.
Chief Justice Mogoeng unambiguously and unequivocally spoke out against
racially skewed briefing patterns and discriminatory practices against blacks
and women legal practitioners during his JSC interview for the position of
Chief Justice. Mogoeng bravely did
so at a time when the stakes were phenomenally high and odds were heavily stacked
against him. He did not mince his
words even when he faced unprecedented well-orchestrated and robust opposition
by civil society, including Cosatu trade unions, legal academics and advocates.
5.12
He spoke passionately on the subject during the JSC
interview preceding his ascendancy
to the position of Chief Justice,
an event which received nation-wide coverage on television, radio and in print
media. Needless to point out that
no one at that JSC hearing, which included the current Deputy Chief Justice
Moseneke, President of the Supreme Court of Appeal, Mpati, and leading members
of the Bar ever raised an objection or insinuated that then Justice Mogoeng was
transgressing the bounds of judicial propriety by venturing an opinion or
taking a stance on a matter which could potentially serve before the
Constitutional Court or even the JSC he was destined to chair. At the time Justice Mogoeng spoke in 2011
the reality was that nearly 50% of the High Court judges were white in a
country where less than 10 percent of the general population is. Similarly, black Africans occupy only
12.3 percent of top management positions in South African companies, though
they make up almost three-quarters of the workforce. The figures were almost inverted for white South Africans,
who make up just 11.3 percent of the workforce but hold 72.6 percent of top
management jobs. No one amongst
Chief Justice Mogoeng’s fiercest critics can honestly claim that Mogoeng was a
stealth candidate who assiduously kept secret his views and judicial philosophy
during the nomination and interview process only to spring an unpleasant
surprise on hapless fellow citizens once he ascended the throne of judicial
leadership. The JSC interview
which was clearly cantankerous and was characterized by negative and hostile
sentiment against Mogoeng focused on alleged gender insensitivities and
homophobia on Mogoeng’s part and
his jurisprudential approach to affirmative action was never questioned. But
that was not all.
5.13
Almost exactly one month after his appointment as
Chief Justice Mogoeng was the keynote speaker at the inaugural Advocates for
Transformation (AFT) annual lecture, held at the University of the Western Cape
in October 2011. Mogoeng was in Cape Town chairing
the Judicial Service Commission (JSC) hearings for 19 positions, including the
position for the deputy president of the Supreme Court of Appeal and the Judge
President of the KwaZulu-Natal division.
Predictably, judicial transformation was one of the focal points of the JSC
hearing’ “ with white candidates especially, being grilled on what strides they
had made to help transform the profession.” Id. But Mogoeng sparred no one and was even-handed in his
approach as revealed at the lecture.
He warned against “fronting” in the legal profession, saying “women and
black people aspiring to be judges should have a proven record of dedication to
transformation.” Id. He debunked
the myth that transformation was all about pushing numbers based solely on race
or sex and stated: “If our experience
with fronting in this country is anything to go by, we would be naïve to assume
readily that competence or colour pigmentation or gender, without more, would
satisfy this constitutional requirement in relation to judicial appointments.”
Id. He went further and
stated: ”If some black people and some
women have proved to be willing partners in diverting to the whites and
previously advantaged the economic benefits specially packaged for the
upliftment of the previously disadvantaged, then potentially the same could
happen even within judicial circles if we are not as strict as we ought to be
in the selection of judicial officers. Bearing in mind that it is transformation
agents we are looking for here, it is not just about colour. It is not just
about gender and cannot be.” Id.
Returning to a familiar theme of racially skewed briefing patterns, he
touched on during his own JSC interview in September 2011, Chief Justice Mogoeng
“lambasted big business, the government and parastatals for repeatedly briefing
white senior male counsel assisted by white juniors.” Id. He poignantly stated: “People often
complain about the poor quality of judgments produced by black judges. But that
is the fate you are condemning yourself to as South Africans if you continue to
maintain these skewed briefing patterns.” He voiced his concerns and “chastised judges that did not
give back to poor communities.” Id.
He concluded: “It should also be a matter of great concern to us when
the best among us always have time for prestigious previously advantaged
universities, overseas universities and similar engagements, but rarely for
those universities previously reserved for black people, and engagements likely
to add nothing to their CVs even if they could benefit those that need judicial
education.”
5.14
A few months into his tenure Chief Justice Mogoeng
once again spoke about respect for judicial independence and threats to the
judiciary at a meeting of South African Editors’ Forum in July 2012. Mogoeng stated that any one “who went
beyond talk or criticism to actually threaten the judiciary's independence
would definitely be confronted.” Id. He carefully drew the line between freedom
of speech, which he respects, and other actions which threaten judicial
independence. He stated: “Every South African who is aggrieved about
something has the right to say what he wants... that's also politicians... but
I will not hesitate to confront anybody who actually does something that poses
a threat to the independence of the judiciary." Id. He was asked if, given statements by some politicians that
the judiciary was being used to undermine the government, he felt there were
any threats, now or potentially, to the independence of judges. He stated: "I will not respond
every time somebody says something... but if that person does something, I'll
rise up to confront him." Id. The Chief Justice said he did not at the
moment see any threats to the independence of South Africa's judiciary. "But if we ever get to the point where our
judges are pressured never to go a particular way in decisions for fear of
threats, or death threats, or cartoons, whatever... Then the judiciary is under
threat." Id. The Chief Justice,
whose appointment was strongly criticised by commentators in the media, said he
would be "forever grateful" to the media for the extent of the
criticism of him. He said it “had shown him something he did not believe he had the capacity for - to
thrive under pressure and "to stay focused on what I have been privileged
to have been appointed to do". He urged the journalists to “keep on writing, .. it is
good. People must have the space to express themselves as strongly as they wish
to.” He made it clear it was not
personal and stated: “ I have the
capacity to absorb just about anything, but spare the magistrates and the
judges ...We do not need judicial officers that decide cases based on what they
have seen happen to colleagues in terms of media criticism."
5.15
In October 2012 Chief Justice mogoeng made a number of
speeches dealing with judicial independence and alleged political interference
in the JSC. In the first
speech, “Chief Justice Mogoeng Mogoeng … lashed out at claims of political
interference in the Judicial Service Commission (JSC), saying that “the
involvement of politicians is necessary” in the appointment of judges.” Mogoeng was addressing a press
conference called to announce the candidates that have been recommended by the
commission for appointment as judges.
Mogoeng said it had become necessary for the commission to address
criticism that candidates recommended by the commission were predetermined and
that this perception led to a lack of suitable candidates making themselves available
for appointment. Mogoeng said that
the JSC commissioners “did not know why there was a shortage of candidates but
said it could be that “the pastures are lush on the other side of the river
Jordan”, a possible reference to lucrative private legal practise.” Id. Mogoeng also addressed
allegations of political interference in appointments, saying that critics
making these claims should come out with “substantiated evidence” that could be
dealt with. Id. He said that the drafters of the
Constitution had “in their wisdom” decided on the current make-up of the JSC,
and said that appointments of judges in countries such as Germany and France
were purely political appointees.
He stated: “The involvement of
politicians is necessary because they represent the people. In some
democracies, judges are in fact elected in the same way as politicians.”
Id. Mogoeng said that “candidates
and those who support their candidacy would do well to remember that, like all
others, they are candidates”.
Id. “However highly skilled a candidate might be, as the Afrikaners would
put it, ‘dit is nie ‘n uitgemaakte saak nie’ (it is not a foregone conclusion)”.
5.16 Mogoeng’s
comments were made in the aftermath of the controversy surrounding the JSC’s
decision not to recommend Advocate Jeremy Gauntlett SC for appointment to the
bench of the Western Cape High Court.
The newspaper reported that at the press conference, “the commission
confirmed that Gauntlett had been passed over for appointment, despite a fifth
additional spot that was filled in the Western Cape High Court. This means the
commission could again find itself in court, after lawyers acting for retired
Deputy Judge President Louis Harms wrote to Mogoeng asking for reasons why
Gauntlett was passed over. It
appears likely that Harms, who nominated Gauntlett for appointment, will take
the matter to court for a review of the decision.” Id. Mogoeng
said that “no analyst, no pressure group,
no organisation, no politician and no media group should labour under the
impression that we are capable of being pressurised or intimidated into
appointing their preferred candidate”. Id.
5.17 Shortly
after the foregoing speech, Chief Justice Mogoeng spoke on the occasion of
Judge Bernard Ngoepe’s retirement in October 2012. The Chief Justice spoke on the subject of judicial
independence and freedom of the judiciary from the pressure of special interest
groups. Mogoeng said judicial independence
would be 'limping' if it only meant independence from the ANC. The Chief Justice warned judges against being fearful of 'what vocal and well-resourced opposition
party leaders can do to you, what resources and forces the rich and powerful
can mobilise against you, and what ridicule, recycled criticism and
misinformation campaigns the media and others could subject you to'. Id. He said: 'If for fear of being labelled pro-executive or conservative you feel
intimidated into toeing a particular line so that you can earn the
categorisation of progressiveness, whatever it means these days, then you are
not independent.' Mogoeng warned those who were 'in the habit of vitriolic
attacks against judicial officers', but who were also the first to jump to
their defence amid criticism by others, to be 'very careful' about how they
criticised judges. Deviating from his written speech, he said those critics
must just 'hamba kahle' (tread carefully). Id.
5.18 Chief
Justice Mogoeng had another opportunity to provide more clarity on his vision
for transformation when he was the keynote speaker at the Black Lawyers Association
2012 annual general meeting on 20 October 2012. The theme of the AGM was ‘Transformation debate: What constitutes a
transformed judiciary?’ and a panel discussion was held to unpack this
question. Speakers at the AGM included Supreme Court of Appeal Judge Ronnie
Bosielo; Professor Shadrack Gutto of the University of South Africa’s Institute
for African Renaissance Studies; Marikana Commission of Inquiry spokesperson,
Kevin Malunga; and President of the South African Women Lawyers’ Association, Noxolo
Maduba. The AGM was preceded by a gala dinner at which Chief Justice Mogoeng
Mogoeng gave a keynote address.
5.19 Chief
Justice Mogoeng spoke on the topic ‘Strengthening access to justice for all:
Creating a lasting legacy for the people of South Africa’, in which he
discussed developments in the judiciary in his first year in office. He also
shared the office’s vision for the judiciary. He said that “a
transformed judiciary was one that represented the race and gender demographics
of the country without sacrificing the quality of justice.” He elaborated on this by stating: “It is a judiciary that is alive to the
injustices often meted out by courts to black people during the apartheid era,
the inaccessibility of courts and real justice to them, the commitment we have
since made as a nation to make a decisive break from that institutionalised
evil of yesteryear, our constitutional values and the related imperative to
bring into being a justice system that South Africans can relate to and proudly
call theirs.” Id. Chief
Justice Mogoeng said that a transformed judiciary was in place when –
• judicial officers enjoyed individual and
institutional independence;
• judicial officers embraced judicial
accountability;
• courts are accessible;
• judicial officers are civil and genuinely
respectful to litigants and have embraced the spirit of collegiality; and
• the system does not permit inordinate delays in
the finalisation of matters and the delivery of reserved judgments.
5.20 Chief
Justice Mogoeng said that when the heads of court met in August 2012, for the
first time they mapped out a ‘decisive and clear programme of action’, coupled
with timelines on how to ‘stem the tide of poor service delivery in all the
courts’. Id. He stated: “This was
done to give impetus to the resolutions of the July 2011 Access to Justice
Conference, which underpinned the need to fundamentally turn the status quo on
its head if we are to deliver the quality justice that our people continue to
yearn for so desperately.’ Id.
Chief Justice Mogoeng said that the power needed to run courts
effectively resided in judicial case management and pilot sites had been set up
for the implementation of this in order to enhance court efficiency and
effectiveness and to reduce backlogs. Id.
He added that having such a system in place will mean that trial date
postponements are rarely requested, documents are exchanged on time, the number
of witnesses is reduced and the issues to be traversed are defined with greater
clarity. He further stated: “With this model, the pace of litigation is
brought back into the hands of judicial officers. If we do not implement
judicial case management, when the public accuses us of failing the nation we
would have no option but to plead guilty as charged.”
5.21 The Chief
Justice also spoke on transformation of the judiciary, which is linked to that
of the legal profession. In this respect, he once again lamented the ‘paucity of real change’ in the country’s
briefing patterns. Id. His
comments as reported in the De Rebus cited above are worth reproducing as
follows:
‘Transformation of the South
African judiciary is our collective responsibility as lawyers and
as a nation. We know that the practices of women and black male lawyers
were severely undermined by the economic imbalances brought into being by the
apartheid system. The Judicial Service Commission and the President are
enjoined by the Constitution to ensure that the judiciary “reflects broadly the
racial and gender composition of South Africa” when judicial appointments are
made,’ he said, adding that white lawyers
who are still in control of the economy of South Africa channel their
instructions and briefs to fellow white people, as does the state attorney.
‘Although the state attorney does give some briefs to black advocates,
most of the commercial cases of substance are given to white male advocates,’
he said.
Chief Justice Mogoeng reiterated
the point he made at the Law Society of South Africa’s annual general meeting
in March that if the nation does not view it as its responsibility too to
ensure that women and black practitioners receive a significant and fair share
of briefs, the judicial appointing authorities could be left with no choice but
not to appoint, or to appoint whoever is available, in order to comply with
their constitutional imperatives.
In addition, Chief Justice Mogoeng
spoke on the ‘proliferation of misconduct cases’ involving attorneys and
advocates, which he said should be of grave concern to the BLA. He urged the
association to find a more effective way to address this proactively, as it had
the potential to tarnish the reputation of the profession.
He added: ‘It is important that we
all work hard to strengthen and maintain the reputation of the legal profession
as the honourable profession that it was established to be. We often interview
black practitioners with less than commendable disciplinary records and this
must come to an end.’
Chief Justice Mogoeng commended
the lawyers present for not allowing the BLA to be rendered obsolete and irrelevant.
He said: ‘I say this because nowadays there is a populist culture that continues
to permeate our existence where approval seeking has become the order of the
day. People are afraid to stand up for what is right for fear of offending or
upsetting a prevalent populist culture or attracting recycled criticism from
the usual suspects.’
He urged the BLA not to capitulate
to those tendencies and to rather speak out against wrongdoing and acts of
corruption – regardless of who is involved and what is at stake – as well as
against the deliberate distortion of facts that has ‘become common these days
in the public domain’. He added that if the BLA did not speak out, it would be
guilty of connivance and history would accordingly judge it harshly.
Chief Justice Mogoeng concluded
his speech by saying that one could never be an esteemed lawyer if the legal
system in which he functions does not enjoy the confidence of the majority of
the citizens, including the poor; not just the rich and educated.
5.22 Chief
Justice Mogoeng Mogoeng once again dealt with the issue of transformation and
alleged reverse racism when he spoke at the Commonwealth Law Conference in Cape
Town on 15 April 2013. Mogoeng also issued a grim warning to
the media not to “rubbish” the Judicial Service Commission because that could
destroy constitutional democracy. Id. He stated that red lights “begin to flash
whenever a concerted effort is being made to project the only true guarantor of
constitutional democracy in a bad light, especially when you are recklessly
going about that.” Id. He told the conference that the surest way to weaken a
constitutional democracy was to deligitimise the judicial appointment authority
and by extension, its judicial officers. Id. Mogoeng said there was a need for “regular commentators” in
the media to “provoke urgent discussions about the redistribution of land and
about those who had previously been excluded from the economy. He said that the
consequences of not taking stock of some of the major issues affecting South
Africa could mean “we find ourselves in the same situation as some of our
neighbouring countries”. Id. The
chief justice also said the “truth often gets compromised” when “campaigns” for
the appointment of preferred judicial candidates take place. As an example, Mogoeng referred to the
discussion document regarding the appointment of white males, which was
authored by commissioner Izak Smuts.
The document sparked controversy and subsequently led to the resignation
of Smuts. Id. Mogoeng said weekend media reports incorrectly stated the
document had been leaked when it was in fact circulated. “Why don’t you tell
the nation the truth?” said Mogoeng.
Id.
5.23 Regarding
the specific subject of transformation in the judiciary and legal profession, the
chief justice said the need for transformation was so obvious that it did “not
even require to be defined”. Id. Chief
Justice Mogoeng said when appointments were made to courts such as the Supreme
Court of Appeal and Constitutional Court, people became “worked up and very
active”.
He stated: “What they do in support of
preferred candidates often borders on the sort of campaigns which we thought
were reserved for politicians.”
He referred to deliberate distortions regarding the “race factor” which
was being contorted when it came to the appointment of judges, which could
create a false impression of “reverse racism.” Id. He backed up his argument with statistics which showed that
when South Africa became a democracy, the country had about 170 judges. Two
were women and three were black. Id. Mogoeng explained that “since October 2009 the
commission had recommended 46 black men, 21 black women, 22 white men and eight
white women for appointment to higher courts.” Id. He further elaborated on this by stating:
“we can
provide you with even more statistical proof that any suggestion that there is
some hunger maybe to get even with our white male compatriots is unfounded
... As a matter of fact, even
during (last) week’s (JSC) sitting, two white males were recommended for
appointment. How, then, does this race factor get contorted in the manner that
it is, with the disastrous possibility of creating a false impression in the
international community that we want to apply reverse racism? And not just the
politicians this time; even judicial officers are party to that irresponsible
drive to delegitimise the judiciary themselves…As I said, we would do well to
tread gingerly or hamba kahle (go well)… ” Id.
5.24 Chief
Justice Mogoeng stressed that there was an urgent need to support black practitioners
and said this was because there was an inclination to support “those you know”. He stated: “Naturally, because our
white compatriots are really in the commanding heights of the economy, they
give instructions to white attorneys, who in turn brief white advocates.”
The report concludes that “in
February, Mogoeng defended the JSC when questions about its commitment to
gender transformation were asked. “All sectors within SA society must be
transformed, including the judiciary,” he said. “The economic sector remains
lamentably untransformed, the four big media houses cry out for meaningful
transformation in terms of ownership, race and gender.” Id.
5.25 A few days
later, Chief Justice Mogoeng Mogoeng, speaking at the annual Human Rights Lecture
of the Law Faculty of the University of Stellenbosch in April 2013, stated that
he will continue to aggressively push for the true separation of powers between
the executive and the Judiciary.
He said a truly independent body of Judges is crucial to the country’s efforts
to safeguard its hard-won constitutional democracy. According to Chief Justice Mogoeng Mogoeng – the Judiciary –
the third arm of South Africa’s Government has for a long time now not enjoyed
the same rights of self governance such as those afforded to the executive and
the legislature. Id. He believes that the time has now come for the Judiciary
to have full institutional independence, so it can take control of its own
resources, determine its own policies and priorities and allocate funds to
pursue those objectives. “We want to sever ties from the executive. Once we
have attained that there can’t be any politicisation because there is nowhere a
politician gets involved,” says Mogoeng. Id. When asked if a truly autonomous
Judiciary would not greatly reduce the role of a Department of Justice, the
Chief Justice was unapologetic saying that is how it should be in the first
place – Judges must run the courts and set the rules pertaining to them, not
politicians. Id. The two Bills which will fast-track
Mogoeng’s dreams for a self-governing Judiciary, the 17th Constitutional
Amendment Bill and the Superior Courts Bill are currently before Parliament and
it’s hoped that both will be signed into law later this year. Id.
5.26 On 25 June
2013 Chief Justice Mogoeng delivered a speech on “The Rule of Law in South
Africa: Measuring Judicial Performance and Meeting Standards” at Chatham House
in the UK During question and answer time, the
following question was posed:
“There has been
a transformation of the South African judiciary since 1994, and many competent
lawyers have been appointed to the Constitutional Court. However, there is
another group of great lawyers who have never been appointed, and they appear
to have encountered difficulties during the interview process. Have they been
singled out, perhaps due to their political independence?”
5.27 Mogoeng Mogoeng’s answers
were reflected as follows:
Hon. Mogoeng replied that some of
the lawyers alluded to applied to the Constitutional Court before his
appointment as chief justice, and thus he could not comment on those cases. Some applicants have been singled out for
celebration or vicious attack in the media, but the Judicial Service Commission
(JSC) does not focus on media reports and will never rubberstamp a candidate
into power based on popularity. It is necessary to look at individuals’
track records as judges first.
However, Hon. Mogoeng noted that
the executive has more influence over this process than the chief justice.
There have been complaints that appointments are decided in advance by members
of the ruling party who serve in the JSC. Hon. Mogoeng said it cannot be a case
of racial prejudice or gender discrimination, because male and female judges of
all backgrounds have been appointed, but rather this indicates collusion
between the ruling party and the judiciary, and an attempt to intimidate the
JSC.
Hon. Mogoeng stated that without
a credible judiciary in place, South Africa’s constitutional democracy will be
destroyed. He added that question needs to be asked over what kind of judiciary
South Africa is creating. Id.
5.28 I have
deliberately quoted at length the above speeches of the Chjief Justice to
illustrate the point also made by the JCC. Although Clause 10(1) discourages judges from engaging in a
public debate about a case, there are other countervailing considerations of
constitutional magnitude when it comes to the rights and duties of the head of
the judiciary to speak. As the JCC
correctly finds, “the subject of the chief justice’s speech was “not a case but an issue that had been publicly debated for a long time. The
institution of the HSF case did not have the effect of stopping that debate .
Moreover the issue is a practical, on-going one for the JSC , which it will
continue to grapple with notwithstanding the pending case.” Moreover, Clause 10(7) recognises
that a judge may participate in a public debate about matters affecting legal
profession and judiciary but says that he must do so in a manner that may not
undermine the standing and integrity of the judiciary. Accordingly, it “was
perfectly legitimate for the [chief justice] to participate in a debate about transformation of the judiciary and to
express his views on what he perceives to be resistance to it. His frankly
expressed views were bound to sit uncomfortably with sections of the legal
profession and the judiciary but that cannot be said to undermine the standing
and integrity of the judiciary.”
5.29 I also
quoted the other speeches of the Chief Justice to illustrate the disingenuous
nature of Hoffman’s criticism. As the JCC ruled, the subject of Mogoeng’s
speech (on the occasion impugned by Hoffman and on many others) was “a matter
of great public interest not only to the legal profession and judiciary but
also to the country as a whole, namely, transformation of the legal profession
and the judiciary. In particular, it touched on the sensitive argument about
the JSC's perceived policy against appointment of white males to the
judiciary.” Given his position as
head of the judiciary “a public debate about transformation of the judiciary is
one that he was not only entitled to participate in but also one that he could
not avoid. As head of the JSC, he was
not only entitled to articulate the views and position of this body on the
matter but also to defend it.”
5.30 Hoffman
resorted to unethical means of participation in or winning a debate – he simply
sought to use the negative media publicity and the JSC complaint processes to
silence the Chief Justice and blackmail him into abandoning the strong stance
he has taken on transformation.
Resorting to the most underhanded and vile tactics, Hoffman accused
Mogoeng of “contempt of court and attempting to defeat the ends of justice” and
complained to the JSC that Mogoeng’s speech amounted to racism. In a brazen display of arrogance and
incompetence as a lawyer, Hoffman argued that Mogoeng had brought the judiciary
into disrepute and was guilty of contempt of court, given that the Helen Suzman
Foundation has launched a court case about the weight the JSC attaches to
transformation when appointing judges.
And yet, Hoffman sought to draw Mogoeng into a discussion on the merits
of the HSF case and potential recusal in that case and “all” of Hoffman’s
cases. Hoffman assumed that “with the institution of the HSF case the debates
around the issues raised therein should come to an end until the case is
decided.” And yet he considers himself exempt from that restraint he imposes
even on the Chief Justice. He
continued to harangue the Chief Justice about the substantive issues and
recusal in both the HSF matter and the “Hawks legislation” As the JCC correctly
perceived: “lt is noteworthy that not
once did the[chief justice] mention such case in his speech. There is
therefore no basis for this complaint.”
5.31 Mogoeng’s
speeches in defence of the judiciary and the constitution are in keeping with
the constitutional obligations and traditions of judicial leaders in most major
democracies. In the US, former Chief Justice William H. Rehnquist, and other
Supreme Court judges spoke out in direct response to tide of political
criticism of sitting judges and their decisions, which sometimes got heated
during political campaign seasons.
Rehnquist stated that the country's history demonstrated how important it was
that Federal judges should never be threatened with removal because of their
rulings. Id. Judicial independence
is "one of the crown jewels of our system of government," the Chief
Justice said in a speech at the law school of American University. While judges
should not be above criticism, he said, the "guiding principle of the
House of Representatives and the Senate" from the earliest years has been
that impeachment and removal of judges should be reserved for criminal conduct
and not judicial acts. The Chief Justice, who “wrote a book on this theme in
1992 and has spoken frequently about judicial independence, did not refer
explicitly to the current context in which attacking Federal judges has become
an early theme of the Presidential election campaign. But because the question
of rulings from the bench and judicial selection have become campaign issues,
the remarks of Chief Justice Rehnquist took on added resonance.” Id. Indeed, Senator Bob Dole the presumed
Republican Presidential nominee, suggested during a campaign appearance “that a
Federal District Judge in New York, Harold Baer Jr., should be impeached for a
ruling that evidence in a drug case was the product of an invalid search by the
New York City police in Washington Heights and could not be used in court.”
Id. In his discussion of
historical threats to judicial independence, the Rehnquist also evoked
President Franklin D. Roosevelt's attempt to pack the Court. The plan, which
the Senate rejected in 1937, was Roosevelt's effort to gain control of a
hostile Supreme Court and would have permitted him to expand the Court's
membership to as many as 15 Justices."Although Roosevelt lost that
battle," the Chief Justice said, "he eventually won the war by
serving three full terms as President and appointing eight of the nine members
of the Court. This simply shows that there is a wrong way and a right way to go
about putting a popular imprint on the judiciary."Id.
5.32 Another US Supreme Court Justice Sandra
Day O'Connor's made a similar
speech to the American Academy of Appellate Lawyers which was described
as “ the talk of the meeting: a rip-snorting defense of judicial independence
that criticized -- without naming names -- individual members of Congress and
even the late president Franklin Delano Roosevelt.” O’Connor added: "We have the power
to make the President or Congress really, really angry, … In fact, if we do not
make them mad some of the time, we probably aren't doing our jobs. Our
effectiveness, therefore, relies on the knowledge that we won't be subject to
retaliation for our acts." Id. She added that the manifest goal of
judicial independence is to enable fair and impartial adjudication. Fears
surrounding the reach of ideologues, the influence of public opinion, and
coercion from legislative or executive branches, private citizens, and interest
groups highlight the relationship between democracy and justice. Justice
O'Connor declared that the natural constituency for judicial independence is a
"vibrant, responsible lawyer class." Id.
5.33 In a speech
to members of the South African Parliament, Justice Ruth Bader Ginsburg
confirmed that she and Justice O'Connor received death threats because they
acknowledged international law in their written opinions. She views the
introduction of legislation that prohibits citation to foreign laws or rulings
in interpreting the U.S. Constitution as fueling the irrational fringe.
Justice O'Connor also wrote an opinion piece rating the Supreme Court's
relationship with right-wing members of Congress as the worst she has seen:
"while scorn for certain judges is not an altogether new phenomenon, the
breadth and intensity of rage currently being leveled at the judiciary may be
unmatched in American history."
5.34 As explained above, the right and duty
of our Chief Justice and other judges to speak publicly on matters concerning
the administration of justice, judicial independence and human rights is firmly
anchored in our own constitution.
Section 165(1) of the Constitution provides that the judicial authority
of the Republic vests in the courts and section 165(2) of the Constitution
provides that the courts are independent and subject only to the Constitution
and the law, which they must apply without fear, favour or prejudice. Section 174(8) of the Constitution
provides that before judicial officers begin to perform their functions, they
must take an oath, or affirm, in accordance with paragraph 6(1) of Schedule 2,
that they “will uphold and protect the Constitution and the human rights
entrenched in it, and will administer justice to all persons alike without
fear, favour or prejudice, in accordance with the Constitution and the law.”
5.35 I
respectfully request that the General Council of the Bar find Hoffman guilty of
misconduct in that his threats of impeachment, defamatory accusations of racism
in letters directed to the chief justice and in newspapers and accusations of
criminal wrongdoing, other subtle pressures and attempts to goad the chief
justice into discussing specific pending cases, the HSF and the Hawks litigation,
constitute violations of Section 165 of the Constitution. The filing of a baseless complaint of
gross judicial misconduct against the Chief Justice also constitutes misconduct
and demonstrates that Hoffman is unfit to remain an advocate.
5.36 In
considering the harm Hoffman caused to the judiciary and administration of
justice, it is important to realize that judges are in a unique position in
which their ability to answer back is limited. As the European Court of Human
Rights observed in Prager and Oberschlick
v Austria (1996) 21 EHRR 1: “Regard
must, however, be had to the special role of the judiciary in society. As the
guarantor of justice, a fundamental value in a law- governed state, it must
enjoy public confidence if it is to be successful in carrying out its duties.
It may therefore prove necessary to protect such confidence against destructive
attacks that are essentially unfounded, especially in view of the fact that
judges who have been criticised are subject to a duty of discretion that
precludes them from replying.”
6.
Hoffman’s Ex Parte
Communication with the Constitutional Court Constitutes Professional Misconduct
and Is Unethical.
6.1
An improper communications with the Court risks the
derailment of pending litigation because of the perceived bias of the Judge(s),
and is contrary to the professional obligations owed between members of the
Bar. Ordinarily, an advocate must
not, outside an ex parte application or a hearing of which an opponent has had
proper notice, communicate in the opponent’s absence with the court concerning
any matter of substance in connection with current proceedings unless: (a) the
court has first communicated with the advocate in such a way as to require the
barrister to respond to the court; or (b) the opponent has consented beforehand
to the advocate dealing with the court in a specific manner notified by the
advocate. An advocate not involved
in a case should never communicate with a judge about substantive issues
pertaining to a pending case and this includes the merits of the case or merits
about recusal applications.
6.2
In this case as explained above, Hoffman communicated
with the Constitutional Court and Chief Justice Mogoeng on the HSF case and
another issue of constitutional magnitude, the fact that a case he is currently
litigating in the Western Cape High Court is eventually slated for litigation
in the Concourt and the fact that he is contemplating potential recusal of the
Chief Justice. As the
Concourt eloquently put it in De Lacy v
South African Post Office 2011 ZACC 17 (24 May 2011):
[47] A complaint of perceived judicial bias is a constitutional matter. S v Basson [2004] ZACC 13; 2005 (1) SA
171 (CC); 2004 (6) BCLR 620 (CC) (Basson I) at paras 21-2. See also Bernert v Absa Bank Ltd [2010] ZACC 28; 2011 (3) SA 92 (CC); 2011
(4) BCLR 329 (CC). There are
several reasons for this, but stating a few should make the point. Judicial authority is an integral and
indispensible cog of our constitutional architecture. Our supreme law vests judicial authority in the courts.
Section 165(1) of the Constitution.
It commands that courts must function without fear, favour or prejudice,
and subject only to the Constitution and the law. It follows that, at all times, the judicial function must be
exercised in accordance with the Constitution. At a bare minimum this means that courts must act not only
independently but also without bias, with unremitting fidelity to the law, and
must be seen to be doing so.
6.3
Accordingly, Hoffman was communicating with the court
on a weighty matter of substance about judicial bias. He initiated the communication with the Court and his
opponents in the Hawks litigation had not consented to his approach –in fact
they only became aware of it by reading about Hoffman’s exploits and wildly
self-aggrandizing statements in the newspapers. The magnitude of the evil inherent in Hoffman’s action
becomes clearer when one considers the following: He is actively involved in
litigation he claims will eventually be litigated in the Concourt. He not only
refers to this case but in addition, he mentions a companion case by HSF in his
communications with the Court.
He then proceeds to argue that the Chief Justice has, through his
speech, “prejudiced against the stance of the HSF and its arguments against the
modus operandi of the JSC”; that the
“content of the speech is evidence of a contemptuous and carefully orchestrated
attempt to defeat the ends of justice by
placing untoward and improper pressure on the judges and courts that will hear
the pending case brought by the HSF regarding the functioning and role of the
JSC” and that the speech is “in clear breach of the requirement of section
165(3) of the Constitution in that it constitutes
interference with the functioning of the courts in the HSF matter.” Hoffman has further claimed that “the content of the speech, coming as
it does from the Chief Justice, “amounts to contempt of the said courts in that
it seeks to dictate the outcome of the
HSF matter or at least to influence the nature of the outcome by adopting a
position that is controversial, contains a particular interpretation of the
Constitution that is unfavourable to the applicant in the said matter , and
which puts pressure on the courts to interpret the Constitution in such a
manner.” Obviously, these are
quintessential matters the Concourt would have to consider when deciding
whether “it is in the interest of justice” to grant leave to appeal in the HSF matter. The same logic applies to the
Hawks litigation case. Hoffman has
essentially managed to put his substantive legal argument on recusal before the
Concourt without alerting both his opponents and the Court that it is part of
his appeal stratagem in other matters including the Hawks matter.
6.4
It is a cardinal and undoubted principle that a judge’s
decision should be made on the basis of the evidence and arguments in the case,
and not on the basis of information or knowledge which is acquired out of
court. This is also an aspect of “the rule against bias”. This aspect of the
rule is similar to the rule of procedural fairness, but not identical because
the question is whether in the circumstances, the parties or the public “might
entertain a reasonable apprehension that information or knowledge which has
been independently acquired will influence the decision.” One court, stated in R v Fisher, (2009) 22 VR 343 [at 20]
the following regarding the proper approach to communications with the Court:
“The circumstances in which
direct communications may be made to the judge’s associate are subject to
important qualifications. Written communications between a party to litigation
and the judge’s associate should normally be confined to matters concerning
practice or procedure. Communications including emails containing
allegations, matters of substance or requests for substantive advice should not
be forwarded to a judicial officer without the party’s express agreement
(save in an exceptional case warranted for example by an ex parte
application).
Unless the subject of express prior consent of the other parties,
written communications should not include information or allegations which are
material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation
should be copied in on any such correspondence. If a communication which apparently fails to comply with
those requirements is received in chambers, it would be for judicial staff
promptly to inquire whether the other party has been notified before engaging
in any further exchanges with the sender.” (Emphasis added.)
6.5
In another case Minister
for Aboriginal Affairs v Peko-Wallsend Ltd,(1986) 162 CLR 24. Mason J (as
the Australian Chief Justice then was) stated:
“Where a matter submitted to an
open inquiry involves a conflict between the interests of parties and the
decision is apt to affect some parties advantageously and to affect others
detrimentally, an ex parte communication between one party and the
decision-maker offends the requirements of natural justice: it deprives the
opposing party of an opportunity to be heard on a matter affecting his
interests and the integrity of the administrative process is eroded by
partiality on the part of the
decision-maker.” Id. at 58.
6.6
Hoffman had no right to communicate with the Chief
Justice and to make certain demands about a pending matter, whether the HSF
case or the Hawks litigation.
There is no evidence that his characterization of the HSF lawsuit is
shared by the parties in that particular case. In fact, Hoffman’s mischaracterization of the HSF case as a
case about discrimination against white males is flagrantly false and amounts
to a hijacking of the HSF claim to score cheap political points. What makes Hoffman’s actions doubly
damnable is that he not only discusses the merits of the pending HSF case but
he does so without notice to any of the parties involved in that matter. The only persons he was eager to take
into his confidence on the matter were newspaper editors and journalists. Even if he had the right to communicate
directly with the Chief Justice on the matter doing so without notice not only
offends the requirements of natural justice but it also deprives the parties
(those congenial to Hoffman and those opposing his position) in the HSF case an
opportunity to be heard on a matter affecting their interests and the integrity
of the adjudicative process is eroded by appearance of partiality on the part
of the Chief Justice. Under the
guise of challenging the bias of the Chief Justice, Hoffman succeeded in
imposing a discussion and a controversy on the Chief Justice about pending
matters, HSF and Hawks in a manner that irreparably prejudices the parties in
those cases.
6.7
Under the
guise of exposing and combating bias on the part of the Chief Justice, Hoffman
has through his ex parte communications with the Court created a reasonable
apprehension of bias not only on the part of the Chief Justice but on the part
of the entire Court. The rationale
for this is clearly articulated in the complaint of the Constitutional Court
against Judge President Hlophe where it is argued that approaching only two
members of an 11 member panel of
Concourt judges created a risk of reasonable apprehension of bias on the
entire court. Hoffman has been an
enthusiastic proponent of this theory and has used in pontificating about the
Hlophe case. It is
mind-boggling sign of extreme arrogance that Hoffman does not see that his own actions
amount to an interference and attempt to improperly influence the Court as he
has always alleged against Hlophe. It is proper to reiterate the observations
of McInerney J in R v Magistrates’ Court
at Lilydale; Ex parte Ciccone,
[1973] VR 122 where the following was stated:
“The sound instinct of the legal profession — judges and practitioners
alike — has always been that, save in the most exceptional cases, there
should be no communication or association between the judge and one of
the parties (or the legal advisers or witnesses of such a party),
otherwise
than in the presence of or with the previous knowledge and consent of
the
other party. Once the case is under
way, or about to get under way, the
judicial officer keeps aloof
from the parties (and from their legal advisers
and witnesses) and neither he
nor they should so act as to expose the
judicial officer to a suspicion of having had communications with one
party behind the back of or without the previous knowledge and consent
of
the other party. For if something is done which affords a reasonable
basis
for such suspicion, confidence in the impartiality of the judicial officer
is
undermined.” Id. at 127.
6.8
In this case Hoffman has perverted the principle of
reasonable apprehension of bias which states that a judge is disqualified if a
fair-minded lay observer might reasonably apprehend that the judge might not
bring an impartial mind to the resolution of the question the judge is required
to decide. That principle gives effect to the requirement that justice should
both be done and be seen to be done, a requirement which reflects the
fundamental importance of the principle that the tribunal be independent and
impartial. There are two steps
involved in the application of the principle to particular cases. First, it
requires the identification of what it is said might lead a judge to decide a
case other than on its legal and factual merits. The second step is no less
important. There must be an articulation of the logical connection between the
matter and the feared deviation from the course of deciding the case on its
merits. The requirement that there
must be a logical connection operates to empower the Court to proceed
notwithstanding that a party “wrongly and irrationally suspects bias.”
6.9
It follows that in raising an issue of potential
recusal and bias on the part of a member of the Concourt, the party doing so
must expect that such an issue will be brought to the attention of the other
members of the Concourt. Where
such matters are pending in the High Courts the risk of influencing the members
of the Concourt on the future course of litigation of such matters before the
Concourt is greatly increased.
A party that prematurely raises hypothetical questions of recusal about
such matters must do so in a manner that preserves the impartial atmosphere for
all the parties. Hoffman has
manipulated and perverted the principle of reasonable apprehension of bias by
submitting to the Concourt and Chief Justice Mogoeng what amounts to a legal
argument for future recusal application in a matter he is currently litigating
on behalf of Glenister. He
has followed this up with extortionate demands published in newspapers and a frivolous
judicial misconduct complaint against the Chief Justice which has been
dismissed.
7.
Cumulatively, Hoffman’s
Series of Correspondence with and about the Chief Justice, Newspaper
Publications, and the JSC Complaint Constitute Contempt of Court.
7.1
Hoffman has made himself guilty of a species of
contempt of court in the nature of prejudgment, and has violated what has been
called the “prejudgment rule”. As Lord Diplock succinctly stated in Attorney-General (UK) v Times Newspapers
Ltd, [1974] AC 273, this form of contempt can be explained in the following
terms:
“The due administration of
justice requires first that all citizens
should have unhindered access to the constitutionally established courts of criminal
or civil jurisdiction for the determination of disputes as to their legal
rights and liabilities; secondly, that they should be able to rely upon
obtaining in the courts the arbitrament
of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that
have been proved in evidence adduced before it in accordance with the procedure
adopted in courts of law; and thirdly, that, once the dispute has been
submitted to a court of law, they should be able to rely upon there being no
usurpation by any other person of the function of that court to decide it
according to law. Conduct which
is calculated to prejudice any of these
three requirements or to undermine the public confidence that they will be
observed is contempt of court.”
Id. at 309. (Emphasis added.)
7.2
A majority of the Australian High Court in Re JRL; Ex parte CJL, (1986) 161 CLR
342 at 347, without referring to Lord Diplock’s statement, expressly accepted
the principle. Gibbs CJ stated:
“a judge should not, in the
absence of the parties or their legal representatives,
allow any person to communicate
to him or her any views or opinions concerning a case which he or she is
hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by
private communication or otherwise, for the purpose of influencing his or her
decision in a case is a serious contempt of court ….”
7.3
In this case, the HSF and Hawks (Glenister) matters
are illustrative of Hoffman’s unbridled contempt of court. In the Hawks matter in which Hoffman is
representing Glenister, it should be remembered that Concourt judges dealt with
an aspect of the same case in which the Scorpions were abolished and a new unit
— the Hawks – were created to investigate “priority crimes”. In the 2011
judgment of Glenister v President of the
Republic of South Africa and Others a majority of judges of the
Constitutional Court, found that the Hawks were not sufficiently independent
and that the state had therefore failed to fulfill its obligations to respect,
protect, promote and fulfill the rights in the Bill of Rights as required by
section 7(2) of the Constitution.
Justice Mogoeng was part of the minority in Glenister (with Ngcobo CJ; Yacoob
J, and Brand AJ).
7.4
By his own admission, Hoffman envisages returning to the Concourt later and states it is
“likely” that the challenge to the new Hawks legislation will serve before the
Concourt “ere long.” The Chief
Justice is the only remaining member of the minority panel which ruled against Glenister. To be doubly sure that the Chief
Justice is taken out of the case completely this time around, Hoffman has
contrived a strategy to entangle the Chief Justice in a controversy, to
communicate his views and opinions concerning the Glenister case with a view to
influencing the Chief Justice’s decision on a future recusal application by
Hoffman. This is a very serious form
of contempt of court.
7.5
In a similar vein, Hoffman arrogated to himself the
right to put his spin on the facts and the law in the HSF complaint and has
used it to intimidate the Chief Justice and to make unfounded, scurrilous accusations
of bias and racism against the Chief Justice. It is a fact of life that submissions by legal
practitioners, who are officers of the court, cannot simply be ignored by the
judges. When such communications
relate to pending cases that are likely to be heard by the Concourt, the
obligation of the Concourt to consider practitioners’ communication assumes
even greater importance. This is
particularly so in the case of the Chief Justice who is responsible for
administration of justice at all levels of our judiciary. Far from ignoring submission by counsel
sent to him, the Chief Justice must listen to, and deal with, submissions on
fact and law made to him and the Constitutional Court. The risk of prejudgment arising from
improper ex parte communications with the Chief Justice and the Constitutional
Court by counsel appearing before it is accordingly significantly greater.
7.6
I submit that Hoffman had a greater obligation to
refrain from communicating with the Chief Justice on the pending cases
mentioned here, more especially Glenister, given the procedural posture of the
case and the history of the Chief Justice having ruled against his client on
prior occasion in the same case. Clearly, a new round of litigation in the Concourt envisaged
by Hoffman will revolve around
whether parliament has complied with the Concourt’s majority ruling in Glenister.
7.7
Lord Diplock’s second criterion demands freedom from
bias and the adherence to proper procedures in adducing evidence. Lord Cross extended this criterion to
raising issues of law. [1974] AC 273 at 322. Communications with the Court that purport to raise factual
matters not proved as evidence or submissions on the law would thus fall within
this second criterion and constitute contempt. Improper ex parte communications with the Court gives rise
to both a reasonable apprehension of bias and a contempt of court. What must be recognized is that even if
it is eventually decided that the practitioner wrongly and irrationally
suspected bias, the dispatch of improper ex parte communication to a judge
could be used by the affected parties to assert the existence of reasonable
apprehension of bias. If
tolerated and allowed to flourish as a widespread practice, the tactics used by
Hoffman would have a deleterious effect on the proper administration of
justice.
7.8
There is no mental element in this area of the law of
contempt of court, and the
fact that the advocate concerned did not intend to so interfere with the
administration of justice is of no consequence.
Acts of intimidation directed at the Chief Justice (the only remaining member
of the group that issued minority judgment) are pernicious form of contempt
which must be rooted out by the Bar Council if it is to retain its credibility
with the judiciary and the generality of the public at home and abroad. The second limb of Lord Diplock’s second
requirement – that is, that facts be proved by evidence adduced according to
proper procedures – would be blatantly infringed where counsel alleges facts in
correspondence to the Court; that is, in the absence of sworn statements by
competent and compellable witnesses, without making those witnesses available
for cross-examination as appropriate, and depriving one’s opponent of the
forensic contest to test those sworn statements.
7.9
As explained below, Hoffman has adopted a perverse
approach contrary to the acceptable rules of the court and ethical rules of the
profession of advocates. He
purports to be the witness and victim of Mogoeng’s statement that “you can
challenge me but you will continue to be frustrated.” In fact he relies on that
statement as the basis of his assertions of bias on the part of the Chief
Justice. As long as Hoffman continues to act professionally as an advocate for
Glenister or any one of his unidentified clients, he cannot be a competent and
compellable witness in any future recusal application involving the Chief
Justice. Properly conceived and
articulated, the principle is that as long as Hoffman purports to be the
witness regarding the Chief Justice’s statement allegedly made in the Hague,
the advocate-witness rule requires that he be disqualified from acting for
Glenister in the Concourt where he intends to raise the issue of bias. It is Hoffman, not the Chief Justice,
who should be thrown off the case.
Accordingly, his statements about the Chief Justice are not facts proved
by evidence adduced according to proper procedures – they cannot be considered
“sworn statements by competent and compellable witnesses” given Hoffman’s
assertion that he will continue to act for Glenister and the other unidentified
clients. Even if they were sworn statements,
Hoffman has deprived his opponents of the forensic test to test those sworn
statements. I submit he purposely
did so in order to secure for himself some tactical advantage and for his
vain-glorious desire for fame – Hoffman wants to be known as the advocate who
took on the black chief justice most white liberal activists labeled a
homophobe, sexists and racist.
Unfortunately for Hoffman, he never for a nanosecond paused to reflect on
and to ponder the magnitude of the damage his actions would inflict on our
judiciary and legal system. It is
no exaggeration to state that such damage is incalculable and will take decades
to undo completely.
8.
Cumulatively, Hoffman’s
Series of Correspondence with and about the Chief Justice, Newspaper
Publications, and the JSC Complaint Constitute the Offence of scandalizing the
court.
8.1
The offence of scandalising the court, also known as
scandalising judges or
scandalising the judiciary, is a
form of contempt of court. It may be defined as
publishing material or doing other
acts likely to undermine the administration of justice or public confidence therein, and usually takes the
form of scurrilous
abuse of the judiciary or imputing
to them corruption or improper motives. It is
distinct from other forms of
contempt, such as:
(1) publications likely to impede or prejudice
particular proceedings;
(2) misbehaviour in court;
(3) breach of jury confidentiality.
8.2
The rationale for an offence of scandalising the court
derives from the need to uphold public confidence in the administration of
justice. In many ways, this need is particularly acute in a democracy, where
the power and legitimacy of the judicial branch of government derives from the
willingness of the people to be subject to the rule of law. In consequence, the
public must have faith in the judicial system.
8.3
In South Africa, the offence of scandalizing the court
was explained by the Concourt in S v
Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR
449 (CC) (11 April 2001) in the following terms: “Contempt of court consists in
unlawfully and intentionally violating the dignity, repute or authority of a
judicial body, or interfering in the administration of justice in a matter
pending before it.” In November 2004 (reported in the SALR in 2006) Combrink J said that much in Moila’s
case. First he said:
“(T)he crime of contempt of court, in the
shape of scandalising the court, is committed by the publication of 'words
which tend, or are calculated, to bring the administration of justice into
contempt’”.
8.4
He then quoted Kotze J in Phelan’s case:
“Now nothing can have a greater tendency to
bring the administration of justice into contempt than to say, or suggest, in a
public newspaper, that the Judge of the High Court of this territory, instead
of being guided by principle and his conscience, has been guilty of personal
favouritism, and allowed himself to be influenced by personal and corrupt
motives, in judicially deciding a matter in open Court.”
8.5
In S. v. Mamabolo (E TV and Others
Intervening) 2001 (3) SA 409,
Kriegler J, at para 14, correctly stated the following:
“14. The reason for the
existence of contempt of court as a punishable offence is often traced back to
the observations of Wilmot J in the old English case of R.v. Almon (1765) 97 ER 94 (KB) at 100.
‘The arraignment of the justice of the Judges, is arraigning the King’s
justice; it is an impeachment of his wisdom and goodness in the choice of his
Judges, and excites in the minds of the people a general dissatisfaction with
all judicial determinations, and indisposes their minds to obey them; and
whenever men’s allegiance to the laws is so fundamentally shaken, it is the
most fatal and most dangerous obstruction of justice, and, in my opinion, calls
out for a more rapid and immediate redress than any other obstruction
whatsoever; not for the sake of the Judges, as private individuals, but because
they are the channels by which the King’s justice is conveyed to the people. To
be impartial, and to be universally thought so, are both absolutely necessary
for giving justice that free, open, and uninterrupted current, which it has,
for many ages, found all over this kingdom, and which so eminently
distinguishes and exalts it above all nations upon the earth’. Something of the
king also existed in Roman and Roman- Dutch Law, although it was not recognised
as a specific crime. It has also
received the stamp of approval, albeit in passing of this court in Coetzee v. Government of the Republic of
South Africa (supra) at para 61.”
8.6
At page 421 Kriegler J stated as follows:
“15. The
fundamental question that has to be addressed at the outset
here, is why there is such an offence as scandalising the court at all
in this day and age of constitutional democracy. Why should judges be sacrosanct? Is this not a relic of a bygone
era when Judges were a power unto themselves? Are Judges not hanging on to this legal weapon because it
gives them a status and untouchability that is not given to anyone else? Is it
not rather a constitutional imperative that public office-bearers, such as
Judges, who wield great power, as Judges undoubtedly do, should be accountable
to the public who appoint them and pay them? Indeed, if one takes into account that the Judiciary, unlike
the other two pillars of the State, are not elected and are not subject to
dismissal if the voters are unhappy with them, should not judges, pre-eminently
be subjected to continuous and searching public scrutiny and criticism?”
8.7
At para 16 Kriegler then provided the answer to the vexed questions
which he had raised:
“16. The
answer is both simple and subtle. It is, simply, because the
constitutional position of the Judiciary is different, really fundamentally different. In our constitutional order the
Judiciary is an independent pillar of State, constitutionally mandated to
exercise the judicial authority of the State fearlessly and impartially. Under the doctrine of separation of
powers it stands on an equal footing with the Executive and the legislative
pillars of the State; but in terms of political, financial or military power it
cannot hope to compete. It is in
these terms by far the weakest of the three pillars; yet its manifest
independence and authority are essential.
Having no constituency, no purse and no sword, the Judiciary must rely
on moral authority. Without such
authority it cannot perform its vital function as the interpreter of the
constitution, the arbiter in disputes between organs of State and, ultimately,
as the watchdog over the constitution and its Bill of Rights – even against the
State.”
8.8
Kriegler, however, acknowledged at p. 423 that the offence of scandalizing the
court still existed in many Common- law jurisdictions such as England and Wales, Canada, India,
Australia, New Zealand, Mauritius, Hong Kong, Zimbabwe and South Africa.
However, he acknowledged that one notable exception to the list of Common law
jurisdictions recognising the offence is the United States of America. With respect to the latter, case law
shows that notwithstanding the abolition of the offnce in the USA, courts have
been vigorous in punishing lawyers for acts which would qualify as scandalizing
the courts and for statements impugning the integrity of judicial officers.
8.9
Kriegler observed that prior to the adoption of
constitutional democracy and Bill of Rights in South Africa, it was accepted
that there was tension between preserving the reputation of the judiciary on
the one hand and on the other hand acknowledging the right of each and everyone
to form their opinions about matters and to propound them. He further observed at para 28:
“That freedom to speak one’s mind
is now an inherent quality of the type of society contemplated by the
Constitution as a whole and is specifically promoted by the freedoms of
conscience, expression, assembly, association and political participation
protected by ss 15-19 of the Bill of Rights. It is the right – idealists would say the duty – of every
member of civil society to be interested in and concerned about public affairs. Clearly this includes the
Courts.”
8.10 However, he
observed that the alleged tension aforesaid ought not to be exaggerated because
since time immemorial it has been accepted that the business of adjudication
concerns not only the immediate litigants but that it is a matter of public
concern; and that for its credibility, it
is done in the open.
According to Kriegler, such openness seeks to ensure that society knows
what is happening so that it can discuss, endorse, criticise, applaud or
castigate the conduct of their courts.
Kriegler continued at para 29-31 as follows:
“29. . Self
– evidently such informed
and vocal public scrutiny promotes impartiality, accessibility and
effectiveness, three of the important aspirational attributes prescribed for
the Judiciary by the constitution (s 165 (4)).
30. However, such vocal public
scrutiny performs another important Constitutional function. It constitutes a democratic check on
the judiciary. The Judiciary
exercises public power and it is right that there be an appropriate check on such
power…. The nature of the
separation of powers between the Judiciary on the one hand and the legislature and Executive on
the other is such that any other check on the judiciary by the Legislature or
the Executive runs the risk of
endangering the independence of the Judiciary and undermining the separation of
powers in principle. Members of
the public are not so constrained.
31. Ideally,
also, robust and informed
public debate about judicial affairs promotes peace and stability by convincing
those who have been wronged that the legal process is preferable to vengeance;
by assuring the meek and humble that might is not right; by satisfying business
people that commercial undertaking can
be efficiently enforced; and, ultimately as far as all are concerned,
that there exists a set of just norms and a trustworthy mechanism for their
enforcement.”
8.11 At pages
422-424 Kriegler accepted that the Judiciary cannot function properly without
the support and trust of the public; and, that in order to preserve that public
trust, special safeguards were created over the centuries. One such protective device is to deter
disparaging remarks calculated to bring the judicial process into disrepute;
hence, the birth of the crime of scandalizing the court which protects the
authority of the courts. He
acknowledged that the interest that is served by punishing offenders is a
public interest against weakening the authority of the Court. He further acknowledged that it is not
the self-esteem, feeling or dignity of any judicial officer that is protected
but it is the fountain of justice by preventing unlawful attacks upon
individual judicial officers or the administration of justice calculated to
undermine public confidence in the Courts. To this extent he quoted with approval the decision of
Corbett CJ in the Argus Printing and
Publishing Co. Ltd and Others v. Esselen’s Estate 1994 (2) SA (AD) at 29
E-F said:
“The purpose which the
law seeks to achieve by making contempt a criminal offence is to protect ‘the
fountain of justice’ by preventing unlawful attacks upon individual judicial
officers or the administration which are calculated to undermine public
confidence in the courts. The
contempt of court is not intended for the benefit of the judicial concerned or
to enable him to vindicate his reputation or to assuage his wounded feelings
…. As Lord Morris put it in McLeod
v St Aubyn (1899) AC 549 (PC) 561:
‘The power summarily to commit for contempt of court is considered
necessary for the proper administration
of justice. It is not to be
used for the vindication of the Judge as a person. He must resort to action for libel or criminal
defamation.’ ”
8.12 Kriegler
also quoted Gubbay CJ in Re Chinamasa
2000 (12) BCLR 1294 (ZS) and adopts his “lucid and exhaustive exposition of the
law on this topic” where he said:
“The recognition
given to this form of contempt is not to protect the tender and hurt feelings
of the judge or to grant him any additional protection against defamation other
than that available to any person by way of a civil action for damages. Rather it is to protect public
confidence in the administration of justice, without which the standard of
conduct of all those who may have business before the courts is likely to be
weakened, if not destroyed.” Chinamasa (supra) at p. 1311.
8.13 At page 425 Kriegler accepted the
statement of the law by Lord Atkin at p. 709 in the Ambard’s case (supra) that
“But whether the authority and position of an individual judge or the due
administration of justice is concerned, no wrong is committed by any member of
the public who exercise the ordinary right of criticism in good faith an act
done in the seat of justice”.
Similarly, he accepted the statement by Corbett CJ in Argus Printing and Publishing case
(supra) at pp 25-26 that “judges, because of their position in society and
because of the work which they do, inevitably on occasion attract public
criticism and that it is right and proper that they should be publicly
accountable.” At para. 32 Kriegler made the following observation:
But the freedom to debate the
conduct of public affairs by the judiciary does not mean that attacks, however
scurrilous, can with impunity be made on the judiciary as an institution or on
individual judicial officers. A clear line cannot be drawn between
acceptable criticism of the judiciary as an institution, and of its individual
members, on the one side and on the other side statements that are downright
harmful to the public interest by undermining the legitimacy of the judicial
process as such. But the ultimate
objective remains: courts must be
able to attend to the proper administration of justice and - in South Africa
possibly more importantly- they must be seen and accepted by the public to be
doing so. Without the confidence
of the people, courts cannot perform their adjudicative role, nor fulfil their
therapeutic and prophylactic purpose.
8.14 With regard
to the seemingly irreconcilable clash between the constitutional provisions
entrenching human dignity on the one hand and freedom of expression on the
other, Kriegler stated that “… the
Constitution, in its opening statement and repeatedly thereafter, proclaims
three conjoined, reciprocal and covalent values to be foundational to the
Republic: human dignity, equality
and freedom. With us the right to freedom of expression
cannot be said automatically to trump the right to human dignity. The right to dignity is at least as
worthy of protection as is the right to freedom of expression. How these two rights are to be
balanced, in principle and in any particular set of circumstances, is not a
question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression
does not enjoy superior status in our law.” Id. at para. 41). (Emphasis
added; citations omitted).
Kriegler emphasized that scandalising the court “is not concerned with the self-esteem, or even the reputation, of
judges as individuals, although that does not mean that conduct or language
targeting specific individual judicial officers is immune. Ultimately the test is whether the
offending conduct, viewed contextually, really was likely to damage the
administration of justice. “
8.15 Kriegler
did not introduce anything new in this judgment. In fact, the offence was
elucidated in the case of Gray,
[1900] 2 QB 36, where a journalist was found to be in contempt by scandalising
the court for describing Mr Justice Darling as an “impudent little man in horsehair, a microcosm of conceit and
empty-headedness”. (The article went on to observe that “no newspaper can exist except upon its
merits, a condition from which the bench, happily for Mr Justice Darling, is
exempt”.) In Gray [1900] 2 QB 36, 40, the offence of scandalising the court
was described by Lord Russell of Killowen CJ as follows:
Any act done or writing published
calculated to bring a court or a judge of the court into contempt, or to lower
his authority, is a contempt of court. That is one class of contempt. Further,
any act done or writing published calculated to obstruct or interfere with the
due course of justice or the lawful process of the courts is a contempt of
court. The former class belongs to the category which Lord Hardwicke LC
characterised as “scandalising a court or a judge”. (In
re Read and Huggonson.)(1742) 2
Atk 469. That description of that class of contempt is to be taken subject to
one and an important qualification. Judges
and courts are alike open to
criticism, and if reasonable argument or
expostulation is offered against
any judicial act as contrary to law or the public good, no court could or would
treat that as contempt of court.
8.16 Regarding
the question of whether Hoffman is guilty of “intentionally violating the
dignity, repute or authority” of Chief Justice Mogoeng, it is important to take
into account how other courts in most major democracies have dealt with
statements of lawyers impugning the integrity of judges or violating the
dignity, repute or authority of the judges.
8.17 Some cases
do consider the likely public impact of the statement made, given the circumstances.
For example, in Kopyto (1987) 47 DLR (4th) 213, the court took into account the
fact that the accused was a solicitor for a defeated client expressing
dissatisfaction. In State v Mamabolo,
2001(1) SACR 686 (CC), it was held that the test for scandalising the court was
“whether the offending conduct, viewed contextually, really was likely to
damage the administration of justice”.
In Solicitor General v Radio New
Zealand, [1994] 1 NZLR 48. it was held that relevant factors will include
“the statements published, the timing of their publication, the size of the
audience they reached, the likely nature, impact and duration of their
influence”. In Hoffman’s case,
this would require looking at his modus operandi very closely. He ensured that his statements were
given to the newspapers for publication even before the parties in the
allegedly pending cases were alerted to the controversial issues he raised in
his letters and newspaper articles.
Hoffman expected these to be more widely publicised by the media,
particularly in light of his sensational and wildly extravagant claims that he
sought to have the Chief Justice impeached. Hoffman not only knew or intended
that the remarks would be reported but he carefully stage-managed how they were
reported – he published them on his website (that of his outfit IFAISA). The likely impact on the administration
of justice is unquestionably huge – Hoffman’s actions unfairly put undue
pressure on the courts, the lawyers litigating the pending HSF and Hawks/Glenister
cases, as well as the litigants or clients.
8.18 For the
litigants in HSF, Hoffman usurped the role reserved for their lawyers and
offered an interpretation of the substantive allegations of the lawsuit never
expounded by the lawyers involved.
He arrogated to himself the right to determine and allege in newspaper
articles that the unidentified people who have “complained when a white male
candidate was not recommended for appointment to the Bench”, and who have
labeled judges appointed to our High Court as "executive toys" are
the litigants whose cases are allegedly pending. Hoffman also implies that the litigants in the pending cases
are party of the war that has “been declared against transformation.” Hoffman
also implies that the litigants are part of the people “clutching at straws to
discredit the JSC” and who “seem to want the JSC they can dictate
to." These allegations by
Hoffman portray the litigants in a negative light and may suggest to the very
judges before whom their cases are pending that the litigants hold the
judiciary in low esteem and are contemptuous of judges appointed by the JSC in
the manner suggested.
8.19 For the
lawyers, Hoffman’s actions constitute brazen interference with the
lawyer-client relationship and is clearly unethical. Not only does Hoffman
purport to interpret the allegations and underpinning legal theory of their
cases; he implicitly portrays the lawyers who failed to take action in light of
the alleged transgressions of the Chief Justice as lackadaisical, professionally
incompetent and not acting to vigorously pursue their clients’ best
interests. Worst of all, he
implies that the HSF lawyers lack the backbone, ethics and zealousness that
only Hoffman possesses.
8.20 In Incorporated Law Society v Bevan1908 TS
724 at 731-732 the Chief Justice expressed it as follows:
‘Now practitioners, in the conduct of court
cases, play a very important part in the administration of justice. Without
importing any knowledge or opinion of their own – which it is entirely wrong
that they should ever do – they present the case of their client by urging
everything, both in fact and in law, which can honourably and properly be said
on his behalf. And this method of examining and discussing disputed causes
seems to me a very effective way of arriving at the truth – as effective a way,
probably, as any fallible human tribunal is ever likely to devise. But it
implies this, that the practitioner shall say or do nothing, shall conceal
nothing or state nothing, with the object of deceiving the Court; shall quote
no statute which he knows has been repealed, and shall put forward no fact
which he knows to be untrue, shall refer to no case which he knows has been
overruled. If he were allowed to do any of these things the whole system would
be discredited. Therefore any practitioner who deliberately places before the
Court, or relies upon, a contention or a statement which he knows to be false,
is in my opinion not fit to remain a member of the profession.
8.21 As
indicated above, Hoffman is actively involved in litigation he claims will
eventually be litigated in the Concourt .
He not only refers to this case but in addition, he mentions a companion
case by HSF in his communications with the Court. He then proceeds to argue that the Chief Justice has,
through his speech, “prejudiced against the stance of the HSF and its arguments
against the modus operandi of the JSC”;
that the “content of the speech is evidence of a contemptuous and
carefully orchestrated attempt to defeat
the ends of justice by placing untoward and improper pressure on the judges and
courts that will hear the pending case brought by the HSF regarding the
functioning and role of the JSC” and that the speech is “in clear breach of
the requirement of section 165(3) of the Constitution in that it constitutes interference with the
functioning of the courts in the HSF matter.” Hoffman has further claimed that “the content of the speech, coming as it does from the Chief
Justice, “amounts to contempt of the said courts in that it seeks to dictate the outcome of the HSF matter or at least to
influence the nature of the outcome by adopting a position that is
controversial, contains a particular interpretation of the Constitution that is
unfavourable to the applicant in the said matter , and which puts pressure
on the courts to interpret the Constitution in such a manner.”
8.22 These
comments are likely to cause consternation amongst the litigants and may lead
to disenchantment with their lawyers and great prejudice and
embarrassment. The clients may be wondering
why, if the HSF lawyers are competent and diligent, it took Hoffman’s
brilliance to uncover and expose the alleged misfeasance and transgressions by
the Chief Justice? They may be wondering why were the HSF lawyers dozing off or
lollygagging at the time Hoffman was fiercely defending their clients’
interests?
8.23 Regarding
the courts in which these matters are pending, Hoffman’s actions are likely to
lower these courts in the esteem of the public. In the event that these courts dismiss, say the HSF case,
the allegations that the Chief Justice “prejudiced the stance of the HSF” and
that by definition the court took the JSC side would persist. The courts are likely to be
portrayed as having succumbed to Chief Justice Mogoeng’s alleged “untoward and improper pressure on the judges
and courts that will hear the pending case brought by the HSF regarding the
functioning and role of the JSC.”
The integrity of the court will be impugned as it would also be
portrayed as having caved in to Mogoeng’s improper attempts to “it seeks to dictate the outcome of the HSF
matter or at least to influence the nature of the outcome by adopting a
position that is controversial, contains a particular interpretation of the
Constitution that is unfavourable to the applicant in the said matter” and
which puts pressure on the courts to interpret the Constitution in such a
manner.”
8.24 Hoffman should be found guilty based on
the line of cases that holds that allegations of corruption, racism or bias are
necessarily such as to damage the administration of justice, and therefore in
themselves sufficient to constitute the offence. This reasoning appears from Kotze J in Phelan’s case:
“Now nothing can have a greater tendency to
bring the administration of justice into contempt than to say, or suggest, in a
public newspaper, that the Judge of the High Court of this territory, instead
of being guided by principle and his conscience, has been guilty of personal
favouritism, and allowed himself to be influenced by personal and corrupt motives,
in judicially deciding a matter in open Court.”
“Whenever there is proper ground for
serious complaint against a judge, it is the right and duty of a lawyer to
submit his grievances to the proper authorities.” Owen v. Carr, 497 N.E.2d 1145, 1149 (Ill. 1986). Whenever such allegations are made
frivolously and without any rational basis, it is the duty of the court
licensing the attorney to question whether the lawyer can remain certified to
the public as a professional of sound judgment. A lawyer who resorts to self-serving publicity stunts in the
newspapers and recklessly impugns the integrity of the Chief Justice is
unworthy of continued membership of the Bar.
8.25 The
lawyer’s right to criticize is always balanced against the state's compelling
interest in preserving public confidence in the judiciary. As Lord Reid stated in A-G v. Times Newspapers Ltd. [1974] AC
273, 294 H.L.:
“The law on
this subject is and must be founded entirely on public policy.
It is not there to protect the private rights of parties to a litigation
or prosecution. It is there to
prevent interference with the administration of justice and it should in my
judgment be limited to what is reasonably necessary for that purpose. Public policy generally requires a
balancing of interests which may conflict. Freedom of speech should
not be limited to any greater extent than is necessary, but it cannot be
allowed where there would be real prejudice to the administration of justice.”
8.26 Notwithstanding
that US courts do not recognize the offence of “scandalizing the courts” the
courts in that country have not hesitated to impose severe penalties on lawyers
who impugn the integrity of the judiciary. The primary reason that courts
impose serious sanctions for attorney speech impugning judicial integrity is
the belief that such measures are justified by “the state’s compelling interest
in preserving public confidence in the judiciary.” See, Fla. Bar v. Ray,
797 So. 2d 556, 559 (Fla. 2001); see also In
re Wilkins, 777 N.E.2d 714, 718 (Ind.2002) (citing the “state’s interest in
preserving the public’s confidence in the judicial system and the overall
administration of justice”); Idaho State
Bar v. Topp, 129 Idaho 414, 416 (1996) (citing “the state’s legitimate
interests in preserving the integrity of its judicial system”); Office of Disciplinary Counsel v. Gardner,
99 Ohio St.3d 416, 423 (2003) (citing the state’s compelling interest in
preserving public confidence in the judiciary” and “in the fairness and
impartiality of our system of justice” as supporting rejection of Sullivan
standard for attorney discipline); In re
Cobb, 445 Mass. 452, 473 (2005) (holding that objective standard was proper
because of the “state’s interest in protecting the public, the administration
of justice and the legal profession”); In
re Graham, 453 N.W.2d 313, 322 (Minn. 1990) (same); U.S. Dist. Ct. for E.D. of Wash. v. Sandlin, 12 F.3d 861, 867 (9th
Cir. 1993) (same); In re Garringer,
626 N.E.2d 809 (Ind. 1994) (contending that statements “do nothing but weaken
and erode the public’s confidence in an impartial adjudicatory process”); In re Westfall, 808 S.W.2d 829 (Mo.
1991) (relying on “the state’s substantial interest in maintaining public
confidence in the administration of justice”); In re Holtzman, 78 N.Y.2d 184, 185 (1991) (stating “in order to
adequately protect the public interest and maintain the integrity of the
judicial system, there must be an objective standard”); In re Evans, 801 F.2d 703, 707 (4th Cir. 1986) (positing that “the
public interest and administration of the law demand that the courts should
have the confidence and respect of the people” and thus “[u]njust criticism,
insulting language and offensive conduct toward the judges, personally, by
attorneys, who are officers of the court, which tend to bring the courts and
the law into disrepute and to destroy public confidence in their integrity,
cannot be permitted” (internal citations omitted)); Ramirez v. The State Bar of Cal., 28 Cal.3d 402, 414 (1980)
(holding that discipline was necessary to “protect[] the public and preserv[e]
[] respect for the courts and legal profession”); State v. Nelson, 210 Kan. 637, 642 (1972) (stating that cannot
“create disrespect for courts or their decisions”); In re Raggio, 87 Nev. 369, 371 (1971) (positing that, as a result
of an attorney’s public statements “[e]ssential public confidence in our system
of administering justice may have been eroded”); In re Meeker, 76 N.M. 354, 363 (1966) (characterizing attorney’s
comments about judiciary as an “attempt[] to destroy the trust of the people of
New Mexico, and elsewhere, in their courts and in their judges”).
8.27 The Supreme
Court of Delaware expounded: “Adherence to the rule of law keeps America free.
Public respect for the rule of law requires the public trust and confidence
that our legal system is administered fairly . . . .” In re Abbott, 925 A.2d 482, 488 (Del. 2007); see also, In re Shimek, 284 So.2d 686, 688 (Fla.
1973) (stating, post-Sullivan, that “[n]othing
is more sacred to man, and particularly to a member of the judiciary than his
integrity” and “[o]nce the integrity
of a judge is in doubt the efficacy of his decisions are [sic] likely to be
questioned”); In re Antanga, 636
N.E.2d 1253, 1258 (Ind. 1994) (positing that “the judicial institution is
greatly impaired if attorneys choose to assault the integrity of the process
and the individuals who are called upon to make decisions”). An attorney’s statement to the press regarding a court’s
decision to hold a politically sensitive hearing ex parte was characterized as
“chip[ping] away at the public confidence in the integrity of the judicial
system” and bringing “the judicial system into discredit in the public mind.” Ky. Bar Ass’n v. Heleringer, 602 S.W.
2d 165, 168 (Ky. 1980). Notably, the attorney’s comment that the ex parte
hearing was “highly unethical and grossly unfair” was, at most, an
overstatement. Further, the attorney was not engaged in the underlying case,
but worked for Right to Life and was politically interested in the outcome. For “[e]very lawyer, worthy of respect,
realizes that public confidence in our courts is the cornerstone of our
governmental structure.”Id. Finally, in oft-quoted language, the Supreme Court of Indiana
stated that the Sullivan standard is inappropriate because attorneys who
disparage the judiciary commit “a wrong . . . against society as a whole, the
preservation of a fair, impartial judicial system, and the system of justice as
it has evolved for generations.” In re
Terry, 271 Ind. 499, 502 (1979); Cobb,
445 Mass. at 471 (2005) (same, quoting Terry); Holtzman, 78 N.Y.2d at 192
(same, quoting Terry); Graham, 453
N.W.2d at 322 (same, quoting Terry).
8.28 Case law from these jurisdictions with
the most liberal and permissive laws on freedom of speech amply illustrate that
Hoffman’s unwarranted attacks on the Chief Justice would never be tolerated in
any self-respecting democracy. As
noted in Westfall, 808 S.W.2d at
829, the canons of professional ethics first were issued by the American Bar
Association to codify the United States Supreme Court’s announcement in Bradley v. Fisher, 80 U.S. (13 Wall.)
335, 20 L.Ed. 646 (1872), that it was adopting:
severe restrictions on the right of attorneys to criticize the
judiciary: ‘[T]he
obligation which attorneys impliedly assume … when they are admitted to
the bar, [is to] maintain at all times the respect due to courts of
justice and
judicial officers. This
obligation … includes abstaining out of court from
all insulting language and offensive conduct toward the judges
personally
for their judicial acts.’ Id. 80 U.S. at 355.
Westfall, 808 S.W.2d at 834.
8.29 Later cases
have made clear that debate and public comment regarding the judiciary is
protected speech but that, “[w]here unbridled speech amounts to misconduct that
threatens a significant state interest, the state may restrict a lawyer’s
exercise of personal rights guaranteed by the Constitution.” Id. at 835. For this reason:
Lawyers must execute their
professional responsibilities ethically and
pursuant to rules, carefully considered,
in order to ensure the confidence of
both litigants and the public.
Statements by a lawyer impugning the
integrity and qualifications of a
judge, made with knowledge of the
statements’ falsity or reckless
disregard of their truth or falsity, can
undermine public confidence in
the administration and integrity of the
judiciary, thus in the fair and
impartial administration of justice.
Id.
at 836 (emphasis added).
8.30 In re Westfall, 808 S.W.2d 829 (Mo. 1991),
prosecutor Westfall made statements to the press about an appellate decision
prohibiting him from pursuing a prosecution on the grounds of double jeopardy.
Westfall stated in part that the decision did not follow the Supreme Court “for reasons that I find somewhat illogical,
and I think even a little bit less than honest” and that the opinion “distorted the statute and . . . convoluted
logic to arrive at a decision that [the judge] personally likes.” Id. at
831. In disciplining Westfall and finding that he lacked evidence for the
statement, the court found that Westfall “accused Judge Karohl of deliberate dishonesty” and of purposefully ignoring the law to achieve his
personal ends”—not as “an implication
of carelessness or negligence but of a deliberate, dishonest, conscious design
on the part of the judge to serve his own interests.” Id. at 838. The type of charges of ‘deliberate,
dishonest, conscious design” against a judge are eerily similar to Hoffman’s
allegations against Chief Justice Mogoeng but with a major difference – Hoffman
has charged Mogoeng with intentional criminal wrongdoing!
8.31 Where
conduct insulting the courts have been proven, some US courts have not
hesitated to impose the ultimate bar discipline, disbarment. See, In re Cobb, 838 N.E.2d 1197, 1201, 1219 (Mass. 2005) where Matthew
Cobb was sanctioned for multiple infractions. An appellate judge found Cobb’s petition for interlocutory
review “scandalous” and “impertinent” in accusing him of “bias, unethical conduct, and inappropriate susceptibility to unspecified
illegitimate influence.” Id. at
1205. Cobb’s “quick and ready disparagement of judges, his disdain for fellow
attorneys, and his lack of concern for and betrayal of his clients” led the
Massachusetts Supreme Court to find him “utterly
unfit to practice law.” Id. at 1219.
The Court disbarred him.Id.
8.32 In re S.C. 41 Cal. Rptr. 3d 453 (Ct. App.
2006) also involved numerous transgressions, including, in addition to
incivility, the offending brief’s rambling prolixity, violations of court
rules, misrepresentations of the record, and unsupported arguments. Among them,
California attorney Julie Lynn Wolff disparaged the trial judge, “a tactic that
is not taken lightly by a reviewing court.”Id. at 475. Wolff asserted that the trial judge was
biased because he asked questions from the bench to a develop-mentally disabled
minor who testified against Wolff’s client. Id. at 476. But the Court emphasized that it was
reasonable for the judge to question the girl in an attempt to understand her
testimony. Id. Wolff further claimed
that the judge had “admitted” bias. Id. at 476–77. Wolff’s claim that the judge admitted bias was based on the
judge’s explanation that he questioned the minor because he wanted to
understand her testimony. Id. The Court found Wolff’s appeal
meritless. Id. at 458. It further
stated that Wolff’s unfounded allegations against the trial judge could be
grounds for contempt, but it decided to refer the matter to the State Bar of
California instead. Id. at 477, 479.
There, Wolff was disbarred for multiple infractions.
8.33 Disbarment
was also the penalty for Illinois attorney Michael Palmisano. In re Palmisano, 70 F.3d 483, 488 (7th
Cir. 1995). He had been
relieved as counsel in a case in which attorneys’ fees were later awarded to
his replacement. Id. at 485. In
correspondence and motions, he referred to the judge who removed him as “Frank
the Fixer” and “Frank the Crook,” who was “filling the pockets of his buddies.”
Id. He made similar accusations
against other judges and asserted that most Illinois cases are “fixed” through
judges’ friendships and biases.Id. at 485–86. An Illinois disciplinary hearing board found that
Palmisano’s statements were false and made “with knowledge of their falsity or
reckless disregard for their truth or falsity.” Id. at 486. Therefore, the
Illinois Supreme Court disbarred him. Id. at 485. The U.S. District Court for
the Northern District of Illinois then considered whether it also would disbar
Palmisano under a court rule providing for reciprocal disbarment. Id. at 484. Palmisano argued that it should not,
claiming “an infirmity of proof” in the Illinois proceeding, and claiming that
disciplining him was unconstitutional.Id.
Rejecting Palmisano’s arguments, the district court disbarred him, and
he appealed to the Seventh Circuit. Id. The Seventh Circuit held that the
charges against Palmisano had been adequately proven and rejected Palmisano’s
constitutional defense. Id. at 487.
The court stated that while removing corrupt judges is an important
reason to allow criticism of judges, unjustified accusations against courts do
not accomplish that end.
Therefore, attorneys may be held to a higher First Amendment standard
than ordinary citizens. Id. (citing Fla.
Bar v. Went for It, Inc., 515 U.S. 618 (1995); Gentile v. State Bar of Nev., 501 U.S. 1030, 1065–76 (1991)). The court affirmed Palmisano’s
disbarment from practice before the district court. Id. at 488. Because indiscriminate
accusations against judges affect the functioning of the court, Easterbrook
reasoned that “[c]ourts therefore may require attorneys to speak with greater
care and civility than is the norm in political campaigns.”Id. In deciding to
uphold the sanction, the court wrote, “[T]he Constitution does not give
attorneys the same freedom as participants in political debate.”Id.
8.34 In Mississippi Bar v. Lumumba, for
example, an attorney in a criminal proceeding, Lumumba, implied the judge was
corrupt by telling the judge he was “willing to pay for justice” at a hearing
for posttrial motions. In re Lumumba, 912 So. 2d 871, 875
(Miss. 2005). Lumumba was charged with contempt for his in-court comments, and
subsequently called the judge a “barbarian” out of court during an interview
regarding the contempt charges. Id. The Mississippi Supreme Court held that Lumumba’s
conduct prejudiced the administration of justice. Id. at 882. It reasoned that
both Lumumba’s out- of-court and in-court statements were punishable because
they were still “connected” to a current judicial proceeding, in this case the
trial that Lumumba was conducting for his client. Id. at 883.
8.35 In
re Sawyer, an attorney was representing a group of defendants being
prosecuted under the Smith Act.
In an address to the public, the attorney said, “[t]here’s no fair trial in the
case. They just make up the rules as they go along.”Id. at 630. She was
referred to a disciplinary committee and sanctioned because the committee
thought that her comments impugned the integrity of the trial court judge.Id.
at 623-25. The Supreme Court reversed Sawyer’s sanction because it ruled that
lawyers are free to criticize the state of the law.Id. at 630. However, in the very same opinion,
Justice Brennan, writing for the majority, concluded that a lawyer does not
acquire a “license” to impugn the integrity of a judge or attack a judge’s administration
of justice, even if the lawyer is not involved in pending litigation. Id. at
636.
8.36 Justice
Stewart’s concurrence in that same case is perhaps the most quoted opinion in
attorney speech discussions. He stated that lawyers belong to a profession with
“inherited standards of propriety and honor” and then compared lawyers to
doctors, who cannot use the First Amendment as protection from discipline if
they reveal confidential information about patients. Id. at 646–477. In Justice Frankfurter’s dissent, he
argued that attorney speech critical of the judiciary can be dangerous because
of the potential “inflaming and warping significance” it may have on the
public’s view of the judicial process. Id. at 669.
8.37 In Ky. Bar Ass’n v. Waller, 929 S.W.2d
181, 181 (Ky. 1996), a Kentucky lawyer, Louis Waller, was jailed for contempt
and suspended due to his uncivil conduct in filing a memorandum that called a
judge a “lying incompetent ass-hole.” Id. at 181–82. For failing to accord the appropriate respect to the court,
Waller received a thirty-day jail sentence and a fine of $499.14 The judge then referred the matter to
the bar association, which initiated a complaint charging Waller under several
disciplinary rules. Id. at 182. In
that proceeding, Waller submitted a pleading calling a judge a racist,
incompetent liar. He then defended
his use of the term “ass-hole” and sarcastically suggested that an appropriate
sanction against him would be “flogging, caning or some other physical torture.”Id. Waller also referred to himself as an
“old honkey” and used other offensive language. The Kentucky Supreme Court summarized his pleadings as
“generally scandalous and bizarre.”
Although the bar association had recommended only a public reprimand, the
Court determined that Waller’s repeated scandalous language and his lack of
repentance required a more severe punishment, one that would remind him that
“he must conform his professional conduct to minimum acceptable standards.” Id.
at 183. The Court suspended
Waller from practice for six months, ordered him to pay costs, and suggested
that he consider professional counseling.
8.38 In Office
of Disciplinary Counsel v. Price, 732 A.2d 599, 607 (Pa. 1999), a five-year
suspension was the consequence for a Pennsylvania lawyer, Neil Price, who filed
documents containing serious, unsupported accusations against two judges and an
assistant district attorney. Price
alleged that a judge colluded with a lawyer to bring a baseless suit against
Price’s client (id. at 602) and that the same judge had coerced officials. Price accused another judge of
“prosecutorial bias to ingratiate himself with the disciplinary and other
authorities,” as well as sexual harassment of constituents. Id. Price also alleged that an assistant
district attorney was biased against him because Price had discovered
embezzlement by that attorney. Id.
The bar’s hearing committee had applied an objective standard to Price’s
state of mind. Id. at 604–05. Explaining why the objective standard was appropriate,
the Supreme Court of Pennsylvania noted that under a subjective standard, a
respondent always could exonerate himself by saying he believed even the most
“scurrilous” accusation. Id. at 604.
Under the objective standard, the Court considered the factual basis for
Price’s state of mind and held that the statements were made with no
objectively reasonable belief in their truth. Id. at 605. Price had not presented competent
testimony to support his accusations, and he even testified that he based his
statements only on his “perceptions and impressions.”Id. The seriousness of Price’s conduct, his
lack of understanding of its wrongness or of the damage he caused, and the harm
it caused to public perceptions of the judicial system led the court to suspend
Price from the practice for five years and order him to pay costs. Id. at
606–07.
8.39 In
re Madison,282 S.W.3d 350 (Mo. 2009) (en banc) (per curiam), a Missouri
lawyer was suspended for a series of insults directed at a judge. What provoked the ire of the lawyer,
Madison, was that a judge continued a trial because of a problem involving her
elderly parents. The lawyer, Madison, was offended at not being told the
specific reason for the continuance and sent the judge a “very hostile” letter
accusing her of selfishness and racism. Id. at 355. Finding the letter “insulting and offensive,” the judge
recused herself. Id. Despite her recusal, Madison sent her another letter
accusing her of being racist and a tyrant. Yet another letter referred to the judge’s “ ‘evil’
network.” Id. at 136. These
letters led the judge to fear for her safety as Madison had a felony conviction
for aggravated assault. Id. In his
disciplinary hearing arising from these and other incidents, Madison tried to
defend himself by arguing that his statements were true. Although Madison claimed he had
carefully researched his accusations, he was unable to support them with
facts. Far from being “careful” or
“well-researched,” Mr. Madison’s allegations against both judges were completely
without factual basis and were made in the heat of anger and pique. The conduct falls far below the
standard of “what the reasonable attorney, considered in light of all his
professional functions, would do in the same or similar circumstances.” Westfall,
808 S.W.2d at 837. The allegations
were made either with knowledge of their falsity or with reckless disregard as
to their truth. They were intended to disrupt the legal process, and they did
so needlessly. They further caused
one judge to recuse herself unnecessarily from a case and put her in fear for
her safety. This conduct was
prejudicial to the administration of justice. The Missouri Supreme Court found that they were
“without factual basis and were made in the heat of anger and pique.” The Court suspended Madison
indefinitely, without leave to reapply for six months. Additionally, the Court required him to
be evaluated psychologically and complete anger management and ethics courses.
8.40 In Stilley
v. Superior Court Comm. on Prof’l Conduct, 259 S.W.3d 395, 405 (Ark. 2007),
an Arkansas lawyer, Oscar Stilley, wanted to revisit cases he had lost before
the Arkansas Supreme Court, White v.
Priest, 73 S.W.3d 572, 579 (Ark. 2002), so he filed a brief that used
“strident, disrespectful language” to accuse the Court of various
transgressions. Id. at 580. Among
the transgressions were that the Court was biased, that it had lied, and that
it had committed “many serious and apparently intentional wrongs.”Id. The Court found the brief “an
inexcusable breach” of Stilley’s professional obligations. Id. at 581. It considered whether it could strike
only part of the brief, but because offensive language appeared throughout, the
Court struck the entire brief and referred the matter to the state’s
Professional Conduct Commit-tee. Id.
The committee concluded that Stilley had engaged in “serious
misconduct,” and the Arkansas Supreme Court agreed, noting that the striking of
his intemperate brief caused “substantial prejudice to his client.” The Court suspended him from practice
for six months. Id. at 405.
8.41 In re Graham, 453 N.W.2d 313, 318 (Minn. 1990)
(per curiam) a Minnesota case, attorney John Graham was suspended after
alleging his “certain knowledge” that a district court judge, a magistrate, an
attorney, and others had conspired to fix a case against Graham’s client.
Graham was brought before the disciplinary board on the ground that those
accusations were unfounded. Id. He
then admitted that by “certain knowledge” he meant “belief” and that some of
his allegations were based on “speculation.” Id. at 318 n.3. He argued, however, that the First
Amendment provided an absolute privilege for his allegations. Id. at
319–20. But the Minnesota Supreme
Court held that an absolute privilege would be inappropriate because of
lawyers’ special role in the legal system and the potential for their false
statements to harm judges as well as “the administration of justice.” Id. at
322. Graham contended that his
“feelings were genuine” when he made the accusations, but the Court applied the
objective “reasonable attorney” standard to hold that Graham’s subjective
belief was not sufficient to exonerate him. Moreover, Graham’s conduct also violated the prohibition
against bringing frivolous claims.
Finding that Graham’s conduct showed a lack of the judgment that befits
“an officer of the legal system,” id. at 322, the Court suspended Graham from
the practice of law for sixty days and required him to take the state’s
professional responsibility examination and pay $750 in costs. Graham, 453 N.W.2d at 325. See, also, In re Garringer, 626 N.E.2d 809, 810–11
(Ind. 1994) (suspending a lawyer for sixty days for writing an “open letter”
falsely contending, among other things, that a magistrate was biased against
“poor litigants” and a judge had protected criminals); In re Becker, 620 N.E.2d 691, 692 (Ind. 1993) (suspending a lawyer
for six months for writing, among other insults, unfounded accusations that a
court had trampled the rights of the Appellants” and delayed a hearing to favor
the opposing party); Office of
Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 427, 433 (Ohio 2003)
(suspending a lawyer from the practice for six months because his motion
stated, among other insults, that an appellate panel “did not give a damn about
how wrong, disingenuous, and biased” it was).
8.42 In Welsh v. Mounger, 912 So. 2d 825
(Miss. 2005) the court listed cases in which lawyers were suspended for making
uncivil false accusations against judges as follows:
¶ 20. In United States District Court for Eastern
District of Washington v. Sandlin, 12 F.3d 861 (9th Cir.1993), an attorney
was suspended from the practice of law for six months for allegedly making
false statements about a trial judge, in reckless disregard for their truth.
Moreover, in Comm. on Legal Ethics of West Virginia v. Farber, 185 W.Va. 522,
408 S.E.2d 274 (1991), a lawyer was given a three-month suspension for three
separate counts of misconduct and indefinite suspension (pending proof of
emotional and psychological stability) because he had a "pattern and
practice" of lashing at judges with reckless accusations. The attorney
misrepresented facts in a motion to disqualify a circuit judge and made
allegations against that judge to a special prosecutor and again falsely accused
the circuit judge of criminal acts. Id. Also, in Bar Ass'n of Greater Cleveland v. Carlin, 67 Ohio St.2d 311, 423
N.E.2d 477 (1981), an attorney was suspended from the practice of law for one
(1) year for persistently responding to court rulings with statements of
disbelief, profanity, obscenity, disparagement of the judge and other
manifestations of disrespect and discourtesy.
¶ 21. The
following cases are exemplary of a nation-wide judiciary that refuses to
condone or even entertain conduct by attorneys that is unprofessional or
unethical. In the case of In re Evans,
801 F.2d 703 (4th Cir.1986), a lawyer was disbarred from the practice of law
for reasserting charges against a judge, without investigating. The Court
stated that the "failure to
investigate, coupled with his unrelenting reassertion of the charges ...
convincingly demonstrates his lack of integrity and fitness to practice law."
Id. at 706. Also, in the case of In re
Palmisano, 70 F.3d 483 (7th Cir.1995), which was a reciprocal discipline
case where Palmisano was disbarred in Illinois for making blameless accusations
of crime and lesser wrongs against judges, the federal judiciary asserted that
they "are no more willing to
tolerate repeated, false, malicious accusations of judicial dishonesty than are
state courts."
¶ 22. Likewise, in People ex. rel. Chicago Bar Ass'n v. Metzen,
291 Ill. 55, 125 N.E. 734 (1919), the court disbarred an attorney who brought
suit against a trial judge for damages on account of his ruling and prepared
newspaper articles gaining publicity for his suit. When a lawyer repeatedly
made grossly disrespectful allegations against a judge, he was subsequently
disbarred from the practice of law. In
re Whiteside, 386 F.2d 805 (2d Cir.1967). Finally, in State ex rel. Nebraska State Bar Ass'n v. Michaelis, 210 Neb. 545,
316 N.W.2d 46 (1982), an attorney was disbarred when, while at a hearing on
charges of making unfounded allegations against judges, continued his attacks,
and also attacked the deciding court just prior to its decision. In the case at
bar, Kelly should have timely filed his motion before Justice Dickinson voted
on the merits of the case, he should have supported his motion with evidence in
the record, and he should have presented us with legal authority, rather than a
newspaper editorial and a speech given by the Chief Justice. All attorneys are
required to comply with these restrictions and requirements. So must Kelly.
8.43 The Supreme
Court of Ohio has stated that actual suspension from the practice of law is a
mandatory punishment for impugning judicial integrity. Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 427
(Ohio, 2003). The court declared that “[u]nfounded attacks against the
integrity of the judiciary require an
actual suspension from the practice of law.” Id. at 433. The court held that objective reckless
disregard could be found because Ethical Consideration 8-6, under the Code of
Professional Conduct, “admonishes attorneys to ‘be certain’ that their criticism [of judges] has merit.”Id. at 432.
Thus, failure to investigate and “be certain” demonstrates failure to live up
to the attorney standard. Id. The same logic could extend to incorporate an
attorney oath to maintain the respect due the judiciary or a civility code:
reasonable attorneys are respectful to courts unless they have (substantial)
evidence of serious misconduct. So if an attorney makes derogatory statements
without substantial evidence then she has failed to act as a reasonable
attorney.
8.44 Likewise, other
courts have affirmed that they are duty-bound to impose penalties for such
statements. See, Ramirez, 619 P.2d
at 406 (“Appropriate discipline must be
imposed, if for no other reason than the protection of the public and the
preservation of respect for the courts and the legal profession.” (emphasis
added)); In re McClellan, 754 N.E.2d
500; In re Reed, 716 N.E.2d at 428
(stating that court has “constitutional duty” to preserve adjudicatory system
and punish); In re Atanga, 636
N.E.2d at 1257–58 (stating that it “must preserve integrity of the process and
impose discipline” despite outrageous conduct of the judge).
8.45 In Re: Richard W. Reed; Supreme Court of
Indiana, (September 24, 1999), the Disciplinary Commission charged Reed with
making statements about the qualifications of a judge with reckless disregard
as to the truth or falsity of the statements. In January of 1996, Barbara
Gasper Hines was appointed to fill the vacancy created by the retirement of the
former judge. Prior to
her assuming the bench, the Delaware County judges referred all welfare-related
child support cases (Title IV-D) to be heard by a commissioner. On January
9, 1996, Judge Hines announced that she would begin presiding over the Title
IV-D cases filed in her court rather than referring them to the commissioner. As
Prosecuting Attorney, Reed was responsible for providing legal representation
to the State of Indiana in such cases. Reed strongly disagreed with Judge
Hines's decision to hear the Title IV-D cases, and, on January 10, 1996,
expressed his disagreement to Judge Hines in the presence of others.
Thereafter, Reed gave a press interview to reporters from The Muncie Evening
Press and The Muncie Star. During the interview, Reed made a number of
disparaging statements about the qualifications and integrity of Judge Hines
which statements were reported verbatim in newspaper articles that appeared in
the local press within days of the interview. Following are excerpted
portions of the news articles quoting Reed:
“Her arrogance is exceeded only by her ignorance,”
Reed said about Hines in an interview with the Muncie Evening Press.
“The prosecutor had harsh words for Hines ․ ‘Obviously
Barbara has way too much time on her hands,’ he said.”
It's [Judge Hines' decision about hearing her own Title IV-D cases] just
petty political squabbling,” said Reed. “Whenever Barbara Gasper Hines says
anything, I can see a [certain Delaware County political figure's] lips
moving.”
“[Judge Hines] also said she'd
received reports that child support [Title IV-D court office] workers bought a
bucketful of liquor and took it to work before giving it to another judge as a
Christmas gift. Reed called the
story ‘pure fiction.’ “She's just making that up to justify her irrational
behavior,” Reed said.”
“She doesn't have any comprehension of what's going on with respect to
those [Title IV-D] cases,” Reed said. “And she refuses to
learn.”
8.46 Indiana
Professional Conduct Rule 8.2(a) provides that a lawyer shall not make a
statement that the lawyer knows to be false or with reckless disregard as to
its truth or falsity concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate for election or
appointment to judicial or legal office. A comment to the Rules of
Professional Conduct for Attorneys at Law provides the following insight into
the reasoning for this rule: “Assessments by lawyers are relied on in
evaluating the professional or personal fitness of persons being considered for
judicial and public legal offices. Expressing honest and
candid opinions on such matters contributes to improving the administration of
justice.
Conversely, false statements by a lawyer can unfairly undermine public
confidence in the administration of justice.” Prof.Cond.R. 8.2, Comment.
8.47 The parties
agreed and the court found that “by
stating inaccurately, and without making any reasonable effort to verify the
accuracy of his opinion, that Judge Hines was ignorant, that she was being
improperly influenced by politicians, that she had fabricated a report about
liquor being present in court offices, and that she had no understanding of
Title IV-D cases, the respondent violated the above rule.” The parties
agreed further that the appropriate discipline for this misconduct was a public
reprimand. The court
reluctantly accepted this stipulation for sanctions it considered too lenient. Among
the ”factors this Court examines when deliberating an appropriate disciplinary
sanction are the state of mind of the respondent, the duty that was violated,
the court's duty to preserve the integrity of the legal profession, and any
mitigating or aggravating circumstances. Matter of Christoff and Holmes, 690 N.E.2d 1135
(Ind.1997); Matter of Darling, 685 N.E.2d 1066
(Ind.1997); Matter of Conway, 658 N.E.2d 592 (Ind.1995).” It continued:
“In this case, we are struck
by the particularly vicious nature of the
respondent's comments.
His remarks were not precipitous outbursts made in the heat of litigation. They were vituperative,
deliberate, premeditated, and broadcast with the clear intent to embarrass the
judge and to detract from the stature of her position.
It is the constitutional duty of this Court, on behalf of sovereign interests,
to preserve, manage, and safeguard the adjudicatory system of this state. Matter of Friedland, 275 Ind. 214, 416
N.E.2d 433 (1981). The respondent's conduct breeds mistrust and
lack of confidence in the competence and integrity not only of the criticized
judge but of the entire adjudicatory system in this state.”
8.48 The court
noted that “were it not for the fact that this sanction is proposed within the
context of an agreement, the nature of
respondent's acts and the negative effect they have on the integrity of the
judicial process may well have been deemed to warrant a period of suspension.
“ It
noted that the purpose of the
statutory provision which sets out the agreement process is to encourage
appropriate agreed dispositions of disciplinary matters. It also took into account that Reed had “apologized
to the Honorable Barbara Gasper Hines, has submitted the requisite affidavit
acknowledging his wrongdoing, and the Commission's consent to the proposed
discipline, persuade us that a public reprimand should be approved.” Accordingly,
Reed was admonished and reprimanded for the professional misconduct.
8.49 In Idaho
State Bar v. Topp,, 925 P.2d 1113, a part-time county attorney attended a
politically sensitive hearing (but was not involved in the case) about a
proposed county expenditure of $4.1 million. After the hearing, he was asked by
the press to comment on the court’s decision as compared to a similar issue
that had been decided a different way by another judge. Topp responded that he
thought the other judge “wasn’t worried about the political ramifications.”Id.
at 1115. Topp was publicly reprimanded for violating MRPC 8.2 because the
“statement necessarily implied that Judge Michaud based his decision on
completely irrelevant and improper considerations” and thus “impugned his
integrity.”Id. at 1117. At his
disciplinary hearing, Topp brought forth three pieces of evidence that
supported his statement,.
Specifically, Topp pointed to the following facts: (1) there had been “a
political frenzy” in the county on the issue, of which the judge certainly was
aware; (2) the judge rendered an oral decision “immediately after the close of
argument” and released a written decision “within minutes” of the end of the
hearing, which Topp thought supported “an inference that the case was decided
prior to argument and that Judge Michaud was concerned with disseminating that
decision to the public quickly”; and (3) “another district judge in a similar
case had reached a different decision.” Id. at 1114, 1117. The court rejected these submissions, summarily
concluding that “a reasonable attorney, in considering these facts, would not
have made the statement in question.” Id. at 1117.
8.50 In
re Disciplinary Proceedings Against Conway, 174 Wis. 2d 832, 498 N.W.2d 393
(1993), the court concluded that Attorney Conway violated SCR 20:8.2(a) when
he, among other things, wrote a letter to the guardian ad litem in a paternity
case, claiming that the guardian ad litem "seem[ed] to have the judge in
[his] hip pocket" and that "the guardian and the judge should 'quit
[their] vendetta' against his client." Attorney Conway also filed an affidavit alleging that the
court was intent to "nail" his client. Further, in various appellate filings, Attorney Conway
stated that the trial judge was incompetent, "wasn't the least bit
interested in the child," and was out for revenge against the child's
mother; he compared the Rock County court system to "Nazi Germany
revisited," and stated that the trial judge "reduced [the child's]
mother to a prostitute subject to the pimpous [sic] acts of the trial court."
8.51 In
re Disciplinary Proceedings Against Johann, 216 Wis. 2d 118, 120, 574
N.W.2d 218 (1998), Attorney Sara Lee Johann violated SCR 20:8.2(a) within the context of a paternity action
brought against her by the father of the child they had together when she wrote
a letter to the family court commissioner, two circuit judges, and the clerk of
court asserting that the judges had engaged in "biased, deliberate, illegal, malicious, knowing, and fraudulent
interference" with her custody of her child. Attorney Johann
also asserted that the judges had engaged in illegal malicious destruction of
her life and that they had engaged in "hate-based"
decisions against her. Id.
8.52 In In
re Arnold, 56 P.3d 259, 263-64 (Kan. 2002), an attorney similarly sent a
letter to a judge after an unsuccessful court appearance. The letter stated that the judge should
“please [emphasis in original] seriously consider retiring from the bench,”
that the judge did not “have what is required” to do his job, was “absurdly
fastidious” about rules and decorum, and that this masked “an underlying
incompetence. You act like a
robot.” The Kansas Supreme Court found that this letter contained unrestrained
and intemperate statements that the speaker knew or should have known were
false and constituted a violation of his duty to the profession. See also Notopoulos v. Statewide Grievance Committee, 890 A.2d 509, 516-17
(Conn. 2006) (attorney reprimanded where he presented no factual basis for his
statements about judge that were made either knowing they were false or with
reckless disregard for their truth); Anthony
v. Virginia State Bar, 621 S.E.2d 121, 126 (Va. 2005) (derogatory statement
concerning qualifications or integrity of judge made without basis tends to
diminish public perception of integrity of courts and is subject to
discipline); Committee on Legal Ethics of the West Virginia State Bar v. Farber, 408 S.E.2d 274 (W.Va. 1991)
(three-month suspension appropriate for attorney who blamed conspiracy for his
losses and was unable to separate fact from fiction or to admit the
wrongfulness of his conduct).
8.53 Because of
the importance of judicial independence, courts have required lawyers to be
“certain” of their evidence before they hurl accusations of bias, political
motives or corruption at judges. Illustrative
is the standard set by the Supreme Court of Kentucky, which requires that
attorney allegations of judicial “corruption or unethical conduct” be “supported by substantial competent evidence.”
Ky. Bar Ass’n v. Heleringer, 602
S.W.2d 165, 168 (Kentucky 1980) (emphasis added).
8.54 In regard
to the HSF case, Hoffman’s actions can be likened to that of Idaho State Bar v. Topp, 129 Idaho 414,
416 (1996). In that case, an
attorney who attended a hearing (and who was not involved in the case) was
reprimanded for opining to the press that the ultimate decision differed from a
similar case because the judge in the first decision “wasn’t worried about the
political ramifications.” Thus,
his statement “necessarily implied that Judge Michaud based his decision on
completely irrelevant and improper considerations” and thus “impugned his
integrity.” Hoffman’s deliberate distortion of Chief Justice Mogoeng’s
statements are even worse because they are based on intellectual dishonesty on
Hoffman’s part. He deliberately
distorted and misread the substantive allegations of the very pending lawsuit
he claims Mogoeng prejudiced. His
accusations against Chief Justice Mogoeng are actually worse than the
statements that invited disbarment in the case of In re Evans. There an
attorney disbarred from USDC after sending letter accusing magistrate of
incompetence or pro-Jewish bias,
where attorney waited to send letter until after district court had adopted
magistrate’s ruling and Fourth Circuit had rejected summary reversal, although
full disposition at the Fourth Circuit was still pending. In a similar vein, In re Wilkins, 777 N.E.2d 714, 716–17 (Ind. 2002), the lawyer Wilkins
signed a petition to transfer filed with the Indiana Supreme Court that stated
that the lower court’s decision was “so factually and legally inaccurate that
one is left to wonder whether the court of Appeals was determined to find for
Appellee . . . and then said whatever was necessary to reach that conclusion .
. . .” See id. at 716. At the disciplinary hearing, Wilkins brought in support
of his statement evidence regarding the facts and law that the Court of Appeals
had ignored or misstated. See id. The Court concluded, nevertheless, that
Wilkins “offered no evidence to support his contentions that, for example the
Court of Appeals was determined to find for appellee no matter what.” See id. at 717. The Court apparently wanted
Wilkins to bring direct evidence of the motive of the court, prohibiting
reliance on circumstantial evidence of the facts and law ignored. Similar
scenarios occurred in In re Glenn,
256 Iowa 1233 (1964), and Peters v. Pine
Meadow Ranch Home Association, 151 P.3d 962 (Utah 2007).
8.55 As demonstrated In re Westfall, 808 S.W.2d 829 (Mo. 1991), statements to the press accusing
“Judge Karohl of deliberate dishonesty” and of “purposefully ignoring the law
to achieve his personal ends”—not as “an implication of carelessness or
negligence but of a deliberate, dishonest, conscious design on the part of the
judge to serve his own interests” received severe censure from the court. Id.
at 838. Westfall claimed that what
he meant was that “the court of appeals
opinion was ‘intellectually dishonest.’” Id. at 833. In re Frerichs,
238 N.W.2d 764, 767 (Iowa 1976) (court construes attorney’s statement in petition
for rehearing that court was “willfully avoiding the substantial constitutional
issues” raised in this and two other cases as “easily” being read as
“alleg[ing] commission of public offences,” including a misdemeanor and a
felony, and thus as accusing the court of “sinister deceitful and unlawful
motives and purposes”).
8.56 By
Hoffman’s own admission and based on his perception, the HSF case and the
Glenister/Hawks matters are pending before the High Court and are likely to
serve before the Concourt “ere long.” Hoffman’s utterances against the Chief Justice are calculated
to and may adversely affect the fair adjudication of the matters. He is guilty of scandalizing the court
which is an offence consisting of any publications or words which tend, or are
calculated, to bring the administration of justice into contempt, amount to a
contempt of Court. In South Africa
the courts take a similarly harsh line in dealing with the offence of
scandalising the court summarily, was given in 1874 by the Cape Supreme Court
in re Neething (1874) 5 Buch
133. Kotze CJ in In re Phelan (1877) Kotze 5 at 7
described this offence as follows:
“No principle of law is better
established than this: that any publications or words which tend or are
calculated to bring the administration of justice into contempt, amount to
contempt of court. Now nothing can
have a greater tendency to bring the administration of justice into contempt
than to say, or suggest, in a public newspaper, that the judge of the High
Court of this territory, instead of being guided by principle and his
conscience, has been guilty of personal
favouritism, and allowed himself to be influenced by personal and corrupt
motives, in judicially deciding a matter in open court.”
8.57 In Re
Chinamasa (2001) 2
SA 902 (25) 2 at 910-911 Chief Justice Gubbay observed
the following:
“There are two modes of conduct
which fall within the scope of criminal contempt. First, there is contempt in facie curiae which encompasses
any word spoken or act done within the precinct of the court that obstructs or
interferes with the due administration of justice, or is calculated to do so.
Secondly, the offence may be
committed ex facie curiae by words spoken or published or acts done which are
intended to interfere with, or are likely to interfere with, the fair
administration of justice.
An
example of this type of contempt is that described, as ‘scandalising the
court’.
It is committed by
the publication, either in writing or verbally, or words calculated to bring a
court, a judge of a court, or the administration of justice through the courts
generally, into contempt.
It need
not be an attack directed at any specific case, either past or pending, or at
any specific judge.
It is
sufficient if it is a scurrilous attack on the judiciary as a whole, calculated
to undermine the authority of the courts and endanger public confidence,
thereby obstructing and interfering with the administration of justice.”
8.58 In AG v. Baker and Others 1929 TPD 996, a
rule nisi was issued on the respondents to show cause on a date stated why they
could not be committed to prison or otherwise punished for contempt of court in
respect of an article they published charging that the conduct of a trial
magistrate was an “exhibition of magisterial imbecility and generally
improper”.
8.59 In
Hoffman’s letter, published articles and JSC complaint he accuses Chief Justice
Mogoeng of being racist, not being impartial in his dealing with the HSF matter
and Hoffman and of being actuated by a particular agenda. That is false and deserving of
sanctions. In R. v. Editor of the New Statesmen (1928) at page 303, the court
stated: “The article imputed unfairness and lack of impartiality to a judge in
the discharge of his judicial duties. The gravamen of the offence was that by
lowering his authority it interfered with the performance of his judicial
duties.” In the case of Gallagher v. Durack (1985) LRC (Crim)
706 at 710 Murphy J said:
“....The
statement by the appellant that he believed that the actions of the rank and
file of the Federation had been the main reason for the Court changing its mind
can only mean that he believed that the Court was largely influenced in
reaching its decision by the action of the members of the Union in
demonstrating as they had done.
In other words, the applicant was insinuating that the Federal Court had
bowed to outside pressure in reaching its decision. It is fundamental that a Court must decide only in
accordance with the evidence and argument properly and openly put before it,
and not under any outside influence.
The imputation was unwarranted.”
8.60 As Gubbay CJ in Re Chinamasa (2001) 3 LRC 373 at 386
said:
“Anything spoken or written imputing corruption or
dishonest motives or conduct to a judicial officer in the discharge of official
duties or referring in an improper or scandalous manner on the administration
of justice, has been held to fall within the ambit of this species of
contempt called scandalising the court itself.”
8.61 Hoffman’s
letter was not simply a private correspondence directed to the Chief Justice
about a speech the latter delivered at an event hosted by the AFT. Hoffman made clear his intent to use
the newspapers and other media to scandalize the Chief Justice. His draft newspaper article was
attached to the letter. He
remarked that the Chief Justice was not “repentant” about a speech he made as
part of his official function as a leader of the judiciary as explained
above. Hoffman makes reference to
a personal encounter with the Chief Justice at the World Justice Forum in the
Hague during which the Chief Justice allegedly told Hoffman: “ You can continue
to challenge me, but you will continue to be fustrated!” Hoffman claims it is “unthinkable that
any other Chief Justice of SA, living or dead, would comport himself in this
manner.” Hoffman claims it is
“true that the Chief Justice and some of the judgments he has written or
concurred in have been subject to critical challenges, even his suitability for the high office he now holds has been widely
questioned on the basis of his track record of judgments, limited experience
and questionable conduct as a judge and jurist. COSATU and the GLBT
community are among his critics. The speech, and the other provocation, tend to
vindicate, not frustrate, the raising of critical concerns.”
8.62 Hoffman
concludes by stating that the “Legal Practice Bill, the secrecy legislation,
the functioning of the JSC and the Hawks
legislation are all likely to be
challenged in the Constitutional Court ere long. The facts set out above
suggest that the Chief Justice will have to recuse himself in all of these
matters due to the clear perception of political
bias on display in his utterances. He appears to be informed by the tenets
of a different value system to that embodied in the Constitution.”
8.63 Hoffman’s
article entitled “Mogoeng: a most
unsuitable Chief justice” appeared in the SundayTimes, 28 July 2013. In it Hoffman reiterates his
accusations against the Chief Justice and states that it “is unthinkable that
any chief justice of South Africa should evince such bias and malice, both of
which have no place in any proper judge.”
Hoffman claims that the
poor and the cynical are questioning the legitimacy of the bench and “its
affirmative action chickens are coming home to roost.” He claims “recent surveys shows that on
the watch of the chief justice the probity and integrity of the judiciary has
declined in the eyes of those polled.
While the chief justice continues to deliver the type of speech he made
in Cape Town, expect the reputation of the judiciary to suffer further damage.”
Once again Hoffman added: “The Legal Practice Bill, secrecy legislation,
functioning of the JSC and Hawks legislation are all likely to be
challenged in the Constitutional Court before long. The facts set out
in this article suggest that the chief justice will have to recuse himself in
all these matters owing to the clear perception of political bias in his
utterances.”
8.64 Clearly,
Hoffman had no qualms about commenting on the merits of a recusal in a matter
he was actively litigating in the High Court. He sought to drag the chief justice into a discussion on
these matters and when Mogoeng declined the Chief Justice became the object of
Hoffman’s increasingly hostile and vituperative attacks as evidence by the
complaint of “gross” judicial misconduct Hoffman filed with the JSC. This is made clear by Hoffman’s JSC
Complaint which, states, amongst other things:
5. The content of the speech is a
clear breach of the constitutional duty of the Chief Justice to act without
fear, favour or prejudice in that it favours the current practices of the JSC,
over which the Chief Justice is meant to preside in even handed fashion as
chairman. The speech is prejudiced against the stance of the HSF and its arguments
against the modus operandi of the JSC and is fearful of the "key
operators" (whoever they may be) to whom reference is made in the speech.
6. The content of the speech is
evidence of a contemptuous and carefully orchestrated attempt to defeat the ends of justice by placing
untoward and improper pressure on the judges and courts that will hear the
pending case brought by the HSF regarding the functioning and role of the JSC.
The speech is in clear breach of the requirement of section 165(3) of the Constitution
in that it constitutes interference with
the functioning of the courts in the HSF matter in which the Chief Justice
cannot sit as he is chairman of the JSC and accordingly has a conflict of
interest.
7. The content of the speech,
coming as it does from the Chief Justice, amounts to contempt of the said
courts in that it seeks to dictate the
outcome of the HSF matter or at least to influence the nature of the outcome by
adopting a position that is controversial, contains a particular interpretation
of the Constitution that is unfavourable to the applicant in the said matter,
and which puts pressure on the courts to interpret the Constitution in such a
manner.
8.65 Within the
space of a few days, Hoffman moved from complaining about the Chief Justice having
descended “into the arena” to the extreme position of accusing the Chief
Justice of criminal misconduct including contempt of court; attempting to
defeat the ends of justice; Bringing the judiciary into disrepute; breaches of the
Code of Judicial Conduct for Judges; interference with the functioning of the
courts and exerting improper influence on the courts; and infringing the
constitutional rights of the complainant.
8.66 To cinch the matter, Hoffman stated that
all these alleged misdeeds are a “contemptuous
and carefully orchestrated attempt” by the Chief Justice. As explained here, Hoffman cannot cite
any creditable legal authority for the proposition that the Chief Justice, who
chairs the JSC and votes on candidates for judicial appointments, has a “constitutional
duty” not to support “current practices” of the JSC including judicial
appointments process and voting on particular candidates. As explained herein Hoffman’s strained
and fallacious interpretation of the HSF complaint is part of a calculated
strategy to scandalize the court and the Chief Justice – there is no factual
support either in the speech of the Chief Justice or the text of the HSF
complaint for Hoffman’s characterization of the HSF complaint. In addition,
Hoffman deliberately ignored the fact that the Chief Justice has been speaking
about transformation for years and before the HSF complaint was filed. Hoffman deliberately ignores historical
facts simply to purvey his false narrative that the Chief Justice spoke in
reaction to the HSF complaint.
8.67 Equally ridiculous are Hoffman’s
allegations concerning the “remark made by the Chief Justice to the complainant
in The Hague.” Hoffman claims the
remark “evidences bias and malice toward the complainant and is prejudicial to
his professional career insofar as he specialises in constitutional work and
frequently appears in or instructs in matters which are heard in the
Constitutional Court over which the Chief Justice presides. The remark raises a
reasonable apprehension of bias against the complainant on the part of the
Chief Justice, an apprehension that is fortified by the nature and content of
the discourteous response of the Chief Justice, via a functionary in his
office, to the personal letter written to him by the complainant …” An answer
to this outlandish and extravagant claim is provided by the recent JCC decision
dismissing Hoffman’s complaint, Judge Musi remarked that "it is
indeed shocking that an advocate can write a letter to a sitting judge
demanding that the judge explain his fitness for office."
8.68 As
explained herein, Hoffman’s attempt to play victim here should be seen in the
wider context of a ploy to influence the ability of the Chief Justice to sit in
future cases Hoffman is currently litigating in the High Court, to wit, the
Hawks legislation/Glenister case.
In an effort to disguise his true intent, Hoffman refers only to the HSF
case as a pending matter that may be influenced by the Chief Justice’s speech. Nowhere does Hoffman reveal that at the
time he sought to discuss future recusal on the “Hawks legislation” case with
the Chief Justice, the same matter was actively being litigated in the High
Court with Hoffman acting as Glenister’s counsel. This is rank dishonesty and amounted to entrapment of the
Chief Justice in that Hoffman sought to drag him into a discussion of the
merits of a recusal issue on a matter Hoffman expected to be litigated in the
Concourt “ere long.” The
Chief Justice saw through Hoffman’s fraudulent misuse and exploitation of his
status as an advocate by rebuffing his entreaties and refusing to engage in any
substantive discussion with Hoffman.
Hoffman compounded his initial misconduct of communicating with the
Concourt ex parte by now arguing that the Chief Justice’s gave a “discourteous
response” to his letter seeking to influence the Chief Justice over a pending
case. This lack of honesty and
inability to recognize his own ethical lapse on Hoffman’s part is an
aggravating factor for which only disbarment is the appeopriate remedy.
8.69 It is apparent that Hoffman’s letter,
his draft and revised published articles and his JSC complaint were calculated
or intended to bring into contempt and disrepute and to lower the authority of
the Chief Justice. Similarly, the letter,
articles and JSC complaint were intended to interfere with the due course of
the administration of justice. Even
more revealing is Hoffman’s jeremiad that the “Chief Justice's curt and
dismissive relayed response to the olive branch proffered by the complainant in
the letter annexed marked "B" exacerbates and compounds the
infringement of the said rights and confirms the malice harboured by the Chief
Justice toward the complainant , malice which has been festering since the
complainant was critical of the readiness of the Chief Justice for the high
office he holds and corresponded with him in regard to points of clarification
of his values, position on important constitutional issues, and track record ,
all of which were not fully dealt with during the interview process in respect
of the Chief Justice.” This
narrative is revealing of Hoffman’s ulterior retaliatory motives in dealing
with the Chief Justice in the manner he did. As Hoffman admits, he believes the chief justice is the
“most unsuitable chief justice” and he continues to hold the belief that the
chief justice should never have been appointed because “his values, position on
important constitutional issues, and track record” were “not fully dealt with
during the interview process in respect of the Chief Justice.” Hoffman claims there is “malice
harboured by the Chief Justice toward [Hoffman], malice which has been
festering since the complainant was critical of the readiness of the Chief
Justice for the high office he holds...” What would a reasonable judge say in response to a lawyer who
continues to make statements to him impugnng his qualifications and challenging
his fitness many years after he was appointed pursuant to the process set forth
in the Constitution? In
Hoffman’s perverse moral compass, such judge’s refusal to engage him further is
a sign of bias and gross misconduct warranting impeachment.
8.70 It is trite that personal abuse of a
judge in his official capacity as such amounts to contempt of Court because it
has a tendency to bring the administration of justice into disrepute. Similarly, a scurrilous abuse of
a judge is contempt where the words or publication reflect upon his capacity as
a judge. South Africa recognises the offence of scandalizing the court as an
offence punishable by law. Any act
done or writing published which is calculated to bring the court or a judge of
the court into disrepute constitutes contempt of court. The test is whether the offending
conduct viewed contextually is likely to damage the administration of
justice. In arriving at an
appropriate decision, the court has to balance the right of freedom of
expression to the protection of the administration of justice. While lawyers, like all citizens, have
constitutional rights to freedom of speech, their unique status as officers of
the court impose upon them that a lawyer does not acquire a “license” to impugn
the integrity of a judge or attack a judge’s administration of justice, even if
the lawyer is not involved in pending litigation. As US Justice Stewart stated,
lawyers belong to a profession with “inherited standards of propriety and
honor” – the obligation which lawyers impliedly assume when they are admitted
to the bar, is to maintain at all times the respect due to courts of justice
and judicial officers. This
obligation includes abstaining out of court from all insulting language and
offensive conduct toward the judges personally for their judicial acts.
8.71 In
Hoffman’s case there is undeniable evidence of his quick and ready
disparagement of the chief justice, his disdain for fellow advocates in the HSF
matter, including his opponents in the Hawks legislation case, and his lack of
concern for and potential sabotage of the litigants’ interests. Cumulatively
these actions render Hoffman utterly unfit to practice law. Lawyers must
execute their professional responsibilities ethically and pursuant to rules,
carefully considered, in order to ensure the confidence of both litigants and
the public. Statements by a lawyer impugning the integrity and qualifications
of a judge, made with knowledge of the statements’ falsity or reckless
disregard of their truth or falsity, can undermine public confidence in the
administration and integrity of the judiciary, thus in the fair and impartial
administration of justice.
8.72 Hoffman’s articles and writings are a scurrilous attack on the Chief
Justice as a Judge of the Concourt and leader of the judiciary. The writings unlawfully and
intentionally violated and impugned his dignity and authority; they were calculated
or intended to lower his authority and interfere with the administration of
justice. They accused the Chief
Justice of behaving in a criminal fashion, and assert that he lacked integrity,
was intolerant of citizens’ criticism and that he was driven by malice to
pursue personal vendetatta against an advocate simply because the latter was
critical of his appointment. As
the JCC concluded Hoffman’s conduct can only be described as “shocking.”
9.
Hoffman’s Complaints Against
Mogoeng Are Based on Hoffman’s Perversion of and Gross Violation of the
Advocate-Witness Rule.
9.1
The GCB Uniform Rules of Professional Ethics entitled
“Counsel Giving Evidence or Making Affidavits” states the obligation of counsel
as follows:
4.5.1 Counsel must avoid, as far as is possible, putting
himself in any position where he may have to make statements or give evidence
in relation to matters which are in dispute in the case in which he is
appearing.
4.5.2 In all cases, before counsel may make an
affidavit or volunteer to give evidence concerning matters which became known
to him while acting in his professional capacity, permission of the Bar Council
must first be sought.
9.2
Hoffman has violated these rules in the manner
detailed below. In his letter of
18 July 2013, Hoffman states the following:
For my part, I am in honour and
professionally bound to inform any client
I represent in your Court of the words which fell from your lips in The Hague
when we conversed briefly at the beginning of the WJF IV reception last Monday.
Those whom I represent in your Court may or may not instruct me to apply for
your recusal on the basis of what you said to me, as recorded in the attached
draft article. This would depend upon whether they reasonably apprehend bias
against me for what you call my “challenges” in the remark you made to me. I do
so apprehend, with great concern and considerable disturbance of my equanimity
given that well-advised clients may quite reasonably seek other counsel.
This needs to be dealt with sensibly by both of us. I am open to any suggestions you may have in this regard. My question
is: does your remark mean that I have to consider a recusal application in
respect of you whenever I am due to appear in your Court?
9.3
Hoffman’s tactics are emblematic of the desperation of
some in the legal profession who are dead-set against transformation and will
use every stratagem their imagination can conjure up to frustrate those like
the Chief Justice speaking out in favour of transformation in the judiciary and
legal professions. They persist in
doing so even if that means having to resort to asinine and legally nonsensical
arguments. Truth be told, no sober
and reasonably competent advocate would believe that he could establish bias
warranting recusal on the part of a judge through the methods suggested by
Hoffman.
9.4
Given that none of his clients he represents in court were
witnesses to the conversation Hoffman had with the Chief Justice in the Hague,
Hoffman suggests to the Chief Justice that he would be in “honour and
professionally bound to inform any
client” about the conversation.
Building on the shaky façade of his narrative, Hoffman believes that,
flowing from his imparting that hearsay information, his clients “may or may not instruct me to apply for your
recusal on the basis of what you said to me, as recorded in the attached draft
article.” Apparently, Hoffman
is totally oblivious to the fact that what he may tell his clients or what they
might read from the “attached draft article” is rank hearsay evidence. In this context, his clients as the
applicants in a recusal application bear the onus of rebutting the presumption
in favour of judicial impartiality (See SACCAWU
case at 713H – I to 714A – E). For the presumption to be successfully rebutted,
the applicant is required to substantiate its submissions with accurate and
persuasive facts and evidence in support of the apprehension of bias. That is where Hoffman comes in as
a material witness on a key issue of alleged bias stemming from the supposed
hostility Chief Justice Mogoeng harbours against Hoffman. From what Hoffman has revealed so far,
the only compellable and competent witness who can offer sworn statements and
who must be available for cross-examination on the “Hague” conversation as
appropriate would be Hoffman. However Hoffman faces an intractable dilemma - as
long as Hoffman continues to act professionally as an advocate for Glenister or
any one of his unidentified clients, he cannot be a competent and compellable
witness in any future recusal application involving the Chief Justice. Hoffman’s grandiloquent
statements that his clients may or may not instruct him to apply for the Chief
Justice’s recusal shows either gross ignorance or signal a clear intent to
violate the iron-clad advocate-witness rule in his dealing with Chief Justice
Mogoeng.
9.5
History
is replete with egregious examples of the perversion of justice that can occur
when advocates offer themselves as witnesses in their clients’ cases. An academic commentator
has traced the origins of the advocate-witness rule to 15th century
England. During the 1535 trial of
Sir Thomas More, the Solicitor-General who was assisting in the prosecution
turned witness “by testifying that Thomas More had made traitorous comments to
him in a conversation that took place in the Tower of London” and that More had
denied that the King was the legitimate head of the church. This testimony was
extremely dubious but led to the execution of a peson. Id. at 949. Disgust at
what was in essence a sham trial and doubts as to the credibility of the Solicitor-General’s
testimony, appeared to underlie the basis of the nascent rule. Id. at 950.
9.6
Just last year, in Then Khek Khoon v Arjun Permanand Samtani,[2012] 2 SLR 451, Justice
Quentin Loh of Singapore succinctly explained the rationale for the advocate
witness rule and observed that the real mischief targeted by the rule is “the danger of the subconscious shaping of
the evidence to suit the solicitor’s interest as against that of his client and
the duty to the court”. Id. at 47.
Almost a decade earlier, the Singapore High Court in the 1992 decision
of The “Evpo Agsa”,[1992] 1 SLR(R)
662 explained that the advocate-witness rule was “stated more than 400 years ago [in two English cases] that counsel and
counsel’s clerks should not become witnesses in cases in which they are
retained”. G P Selvam JC (as
he then was) commented that great trust was placed on advocates as officers of
the Court and “[w]hen counsel identify themselves not with the case or the
client, they could unconsciously or consciously shape the evidence to favour
their case and client”. The
personal knowledge of an advocate who acts as a witness in the client’s matter
is impossible to remove. Once such knowledge resides in the advocate’s mind,
the temptation for an advocate to tailor his evidence to support his client is
said to be one of the key reasons why the advocate is prohibited from acting
for the client. In The “Evpo Agsa”case, the court relied
on the “subconscious shaping” rationale to extend the reach of the English
advocate-witness rule from counsel appearing in Court as a witness to “counsel making affidavits where the facts
are in dispute”. In that case,
the defendants’ counsel had made four affidavits on behalf of his clients,
which contained “conclusions of facts, arguments, comments, inferences,
statements of law, gave expert opinion, relied on hearsay evidence,
self-serving documents and generally argued the defendants’ case”. Id. at 19.
Although the defendants’ counsel’s affidavit evidence was not subject to
cross-examination, G P Selvam JC held that “[n]o court could accept the
contents of those affidavits as conclusive and decide in favour of the
[defendants]”. Id.
9.7
In the US, the advocate-witness rule is set forth in
Rule 3.7 of the Rules of Professional Responsibility for lawyers.
The leading case construing Rule 3.7 in New York
is Murray
v. Metropolitan Life Ins. Co.,
583 F.3d 173 (2d Cir. 2009). In Murray the Second Circuit
explained the policies underlying
the rule that forbids the same lawyer from serving
simultaneously as both advocate and witness:
We have identified four risks that rule 3.7(a) is designed to alleviate:
(1) the lawyer
might appear to vouch for his own credibility;
(2) the lawyer’s testimony might place opposing counsel in a
difficult position
when she has to cross‐examine her lawyer‐adversary and attempt to impeach
his credibility;
(3) some may fear that the testifying attorney is distorting the truth as
a result of bias in favor of his client; and
(4) when an individual assumes the role of advocate and witness both, the line
between argument and evidence may
be blurred, and the jury confused.
These
concerns matter because, if they
materialize, they could undermine the integrity of the judicial process.
9.8
In South Africa, although attorneys, advocates and
prosecutors are competent witnesses in cases in which they are professionally
involved, it is extremely undesirable that they testify in such cases. By so doing they would compromise their
independence with regard to the case and put their credibility at stake. The
undesirability of an attorney acting as an attorney of record in a matter in
which he is to be an important witness and in which his credibility may be in
issue was dealt with by Wessels J in the case of Elgin Engineering Co. (Pty) Ltd v Hillview Motor Transport 1961 (4)
SA 450 (D) at 454D-H. See, R v Becker
1929 AD 167 where de Villiers ACJ at page 169 quoting Petterson J in Stone v Byron said: "I think when an Attorney appears as an
advocate and makes a speech to the jury and cross examine the witness on the
other side and address the jury in reply and afterwards tender himself as a
witness/or his own client, it is not consistent with the proper administration
of justice that he should be heard.“ It was also in R v Kirsten 1950(3) SA (3) SA 659 per Ogilvie Thomson where the
learned judge said: "In the present case such an additional reason
obtained since as is well known, it is generally recognized to be highly
undesirable that a prosecutor should give evidence in a case wherein he is
himself conducting the Crown case."
9.9
Besides
the issue of whether Hoffman is likely to be a witness, Hoffman’s legal theory
regarding Chief Justice Mogoeng’s recusal on the basis of alleged personal
animosity he harbours against Hoffman is woefully misplaced and absurd. A good illustration is the recent case
decided in the South Gauteng High Court, Moolla
v Director of Public Prosecutions & Others [2012] JOL 28655 (GSJ). There, the applicant (one Ms Moolla)
launched an application for the recusal of the presiding judge, the Honourable
Justice K Satchwell, a prominent self-declared lesbian. The application was
brought on the date of the hearing of the substantive (main) application
brought by the applicant – this involved the granting of a declaratory order
arising from a search and seizure operation conducted by police officials at
her residence. The applicant's
basis for the application was the "…apprehension that Judge Satchwell will
be biased in the adjudication of my matter due to the animosity that exists between the
learned Judge and my attorneys (one Mr Z Omar)". The facts relied
upon by the applicant in support of a reasonable apprehension of bias were,
amongst others, submissions made by Mr Omar to the Judicial Services Commission
that Judge Satchwell should not be appointed to the Constitutional Court
because of her sexual orientation.
The applicant's evidence in support of the above submissions, consisted
of newspaper articles/reports and television reports. Judge Satchwell using the
"double reasonableness" test, firstly, concluded that the applicant
had been reasonable in relying on the contents of the newspaper
articles/reports and television reports. However, Judge Satchwell concluded
that the applicant's apprehension of bias was unreasonable, on the basis that
applicant's application was founded on a reasonable apprehension of animosity
by Mr Omar towards Judge Satchwell, as opposed to, a reasonable apprehension of
animosity by Judge Satchwell towards Mr Omar. Judge Satchwell concluded that
the evidence of the former was irrelevant whilst there was no factual basis for
the latter. Judge Satchwell, accordingly, stated:
"[28] The issue in any application for recusal can never be the personal
views or opinions or predilections of a legal representative towards judicial
officers. The application must be confined to whether or not the judicial officer has conducted herself in
such a way that there is a reasonable apprehension of bias towards the litigant
or her cause." (emphasis added)
9.10 This case
illustrates that there is a strict onus on the applicant to establish the
correctness of the facts and/or evidence led to rebut the presumption in favour
of judicial impartiality. A mere
perception of bias on the part of the applicant will not suffice to succeed in
an application for the recusal of a judicial officer. Likewise, the mere allegations that the judge may not like
the particular lawyer and stray remarks such as “you may continue to challenge me but you will not succeed” are too
slender a reed on which to rest matters of recusal by a judicial officer. Hoffman knows that his letters critical of the
Chief Justice cannot validly be a basis for recusal, in light of evidence that
letters are part of plan to cause recusal due to judge's reputation as tough
enforcer of the constitution’s transformation mandate, Mogoeng’s previous
ruling against Glenister and evidence of previous attempts by Hoffman to
prevent Mogoeng from being appointed as Chief Justice. As explained above, Hoffman has
already signaled his intention to engage in judge-shopping and to use
stratagems aimed at affecting the constitution of the panel likely to hear the
Hawks/Glenister matter when it gets to the Concourt. This damnable conduct must
be seen for what it truly is – it is a strategy aimed at undermining public
confidence in the judiciary and Hoffman is using his artificial argument
questioning Chief Justice Mogoeng’s impartiality to avoid perceived adverse
consequences of his presiding over the Hawks/Glenister case. The policy rationale for recusal is
that litigants are entitled to unbiased judge, not to judge of their
choosing. Hoffman must be
reminded of what was said in Incorporated
Law Society v Bevan 1908 TS 724 at 731-732 where then Chief Justice spoke
about how practitioners, in the conduct of court cases, play a very important
part in the administration of justice. He opined that “any practitioner who deliberately
places before the Court, or relies upon, a contention or a statement which he
knows to be false, is in my opinion not fit to remain a member of the
profession. “ Admittedly,
this was in reference to statements made in court but the converse is also true
- a lawyer who attacks a tribunal and members of the judiciary and relies upon
a statement he knows to be false is not fit to remain a member of the
profession.
10.
Mr. Hoffman’s Media or Press
Statements Constitute Per se Violations of GCB Rules of Professional Conduct
Which Prohibit Advocates From Expressing A Personal Opinion to the Press or
Other Media About the Facts or Issues Arising Out of Any Anticipated or Current
Proceedings In Which They Are Briefed, Expect to Appear or Have Appeared.
10.1 A person
who is admitted to practise as an advocate, and who chooses to exercise that right
to practise, must adhere to the recognised standards of the profession. An
advocate who fails to adhere to those standards to a degree that satisfies a
court that he is unfit to continue to practise is liable to be suspended from
practise or to have his name struck from the roll of advocates.
10.2 In this
matter, the GCB Uniform Rules of Professional Conduct stipulate in Section
4.21 entitled “Statements and
comments to the media” the following: “4.21.1 A member must not issue
statements to any news or current affairs media in connection with any matter
in which he/she is or has been briefed or instructed.”
10.3 The above
section must be read together with Section 4.18.3 entitled “Non-Iegal Publications “ which reads as follows:
(d) Members of the Bar should not write articles in non-
legal
publications with regard to pending cases nor
cases where the time for appeal has not expired.
(e) It is contrary to professional etiquette for
counsel to
engage in
newspaper correspondence or to issue press
statements on
the subject of cases in which they are or
have been
themselves concerned as counsel.
(f) It is undesirable for a member to express an
opinion in
the press, by
letter, article, interview or otherwise on
any matter
which is still pending in the Courts.
Notwithstanding the aforegoing, a member may
express an
opinion in the media, in general terms, on
an issue which
is still pending, provided that the
member does
not thereby purport to pre-judge the
result.
10.4 Even if the
CBC or GCB were to adopt a hyper-technical and/or strict reading of Rule 4.21
and restrict the prohibition only to issuing press or other media statements in
connection with matters in which the Advocate “has been briefed or instructed,”
Hoffman is undeniably guilty.
Hoffman failed to disclose that he is currently representing Glenister
in a High Court litigation
involving the “Hawks
legislation.” In his letter to the Chief Justice and in subsequent articles
published in the newspapers and on the website of IFAISA, Hoffman comments on
the merits of an alleged recusal application that would be brought against
Mogoeng by, amongst others, those involved in the “Hawks legislation” meaning
his clients.
10.5 Further,
Hoffman violates the rules by commenting publicly on the Glenister case. It is
“contrary to professional etiquette for counsel to engage in newspaper
correspondence or to issue press statements on the subject of cases in which
they are or have been themselves concerned as counsel.” It is a matter of public record that
Hoffman was previously involved in the Concourt litigation involving the
Glenister matter. He is now
involved in a sequel to that, namely, the Hawks legislation challenge in which
the applicants contend that parliament did not comply with the Concourt’s
ruling in the earlier Glenister case requiring statutory guarantee of
independence to the Hawks. Hoffman
has already telegraphed his intent to litigate this matter in the Concourt “ere
long.” It is therefore a direct
violation of the GCB rules for Hoffman to publish newspaper articles in which
he discusses the merits of his recusal application when the matter finally
serves before the Concourt.
10.6 Even Hoffman’s comments on the HSF case
violates the GCB rules. A purposive interpretation is required in light of the
following facts. Under the extant
GCB rules, it need not be shown that the impugned press statements constitute
the offence of scandalizing the court or that particular results ensued from
the press interview. It is the
mere release of press statement or interview that is prohibited without regard
to results. It is
against this background that Hoffman’s transgressions must be evaluated. Under the rules, members of the Bar
“should not write articles in non- legal publications with regard to pending
cases nor cases where the time for appeal has not expired” and this must be
interpreted to mean the said Barristers cannot do so indirectly by causing
others, (e.g. Journalists) to regurgitate their views in such articles. It is contrary to professional
etiquette for counsel to engage in newspaper correspondence or to issue press
statements on the subject of cases in which they are or have been themselves
concerned as counsel.
10.7
In any case, the GCB Rules are crystal clear: It is
“undesirable for a member to express an opinion in the press, by
letter, article, interview or otherwise on any matter which is still pending in the
Courts.” This is not
restricted to a matter in which the advocate appeared or was instructed.
Hoffman’s comments and distorted interpretation of the HSF complaint and the
Chief Justice’s alleged prejudicial comments on the HSF litigation clearly
establish Hoffman’s guilt. The
violation of the GCB Rules is clear – Hoffman should have been even more
circumspect because by his own admission he knew that the HSF matter was
pending in the courts. It appears therefore that Hoffman’s press statements
were purely for his own aggrandizement and were calculated to lend propaganda
weight and assistance to the HSF lawsuit.
If the HSF loses, Hoffman would argue that the Chief Justice’s speech
and prejudice emanating from it derailed and irreparable damaged the HSF
prospects.
10.8
Even if there was no “per se” violation of the GCB
Rules, Hoffman’s actions crossed the ethical lines when viewed in context. An advocate who is participating or has
participated in the investigation or litigation of a matter shall not make an
extrajudicial statement that a reasonable person would expect to be disseminated
by means of public communication if the lawyer knows or reasonably should know
that it will have a likelihood of materially prejudicing an adjudicative
proceeding in the matter. The duty
of an advocate not to conduct himself in a way that is prejudicial to the
administration of justice also constrains the advocate in his communication
with the press.
11.
Hoffman’s Violation of
Violation of 3.2 of the Uniform Rules “Duty to Court”
11.1 The issue
here is whether Hoffman should, in his correspondence with Chief Justice
Mogoeng, have divulged that he was currently involved in the “Hawks
legislation” litigation as counsel and that the envisaged recusal application
was more than just a theoretical possibility. As a corollary to that, was the failure to disclose this fact unethical and could the
failure to disclose such material fact in communication with the Chief Justice
have misled the latter? The answer
is clear and unambiguous – it is in the affirmative.
11.2 Section 3.2
of the Uniform Rules “Duty to Court” states that “Counsel’s duty to divulge
to the Court material facts of which he has knowledge is governed on the one
hand by his overriding duty not to mislead the Court, and on the other
by his duty not to disclose to any person including in a proper case the Court
itself, information confided to him as counsel.” The duty of candour to a tribunal is a cardinal principle
which provides that a lawyer may not knowingly fail to disclose material facts
to the court. This rule is
designed to ensure that when lawyers are representing clients in court, they
preserve the integrity of the judicial system by not allowing the court to be
misled by a false understanding of the law or facts.
11.3 Given that
the Hawks legislation/Glenister matter being litigated by Hoffman was actually
pending in the High court, it was incumbent upon Hoffman to disclose this
material fact to the Chief Justice as this would have put the chief justice in
a position to know whether to comment on the matter at all in response to
Hoffman or to refrain from any comment at all. Although the Chief Justice exercised discretion and intuitively
refrained from engaging Hoffman on the merits, the incalculable damage Hoffman
desired to cause to the integrity of the judicial system is obvious. As explained above, Hoffman sought to
mouse-trap the chief justice: Had the chief justice commented on the merits of
the alleged recusal Hoffman would have seized upon that as evidence that the
chief justice had prejudged the merits of even Glenister’s eventual recusal
application. In similar vein, the
chief justice’s refusal to engage Hoffman in a discussion on the substantive
issues is now characterized by Hoffman as evidence of “festering” malice and
“discourtesy.” The Bar Council
must recognized the simple fact that vigorous advocacy is, necessarily,
truthful advocacy. This precludes
a lawyer whose desire to win leads him to muddy the headwaters of decision and
who distorts and obscures the true nature of a case by blatantly trespassing
the obligations of professional responsibility. A lawyer should not be able to proceed with impunity
in obfuscating facts and presenting half-truths to the chief justice on very
important matters which are destined for final resolution in the nation’s
highest court. Had Hoffman succeeded in his attempts to goad the chef justice
into a discussion of the merits of potential recusal in the “Hawks legislation”
appeal envisaged by Hoffman, the damage to the administration of justice and
the credibility of our judiciary would be unfathomable.
11.4 The Bar
Council’s own credibility is at stake in this matter and the Bar’s own
integrity rests on the manner in which this Complaint will be
investigated. A lawyer has a duty
to use tactics that are legal, honest and respectful. This duty is often referred to as the duty of candour. Under this umbrella of a lawyer's duty
to the court, lawyers are primarily responsible for ensuring that they do not
employ strategies that will mislead the court or a tribunal; this includes
misleading the court on evidentiary and legal points as well as making use of tactical
strategies that are likely to affect a case. Hoffman knows that Chief Justice Mogoeng previously
ruled against him in the earlier Glenister judgment. Hoffman is involved in a
sequel litigation on Glenister’s behalf, the so-called “Hawks legislation” case
he alludes to and which is being hotly contested in the Western Cape High
Court. And yet he only informs the
Chief Justice about the HSF as a “pending” case and he totally avoids
mentioning that the Hawks case he mentions in passing is pending as well.
11.5 The members
of the GCB must honestly ask themselves what would become of the credibility of
the judicial system if advocates litigating current cases in the High Court
were given a licence or free reign to approach appeal court judges ex parte to start
bargaining with them and to extract in advance certain undertakings in regard
to future recusal when their cases are appealed to the Constitutional
Court. Even the appearance
and mere possibility of that prospect will assuredly destroy public confidence
in the entire judicial system and our judicial officers.
11.6 Here Hoffman’s dishonesty is highlighted
by the fact that he accuses Mogoeng of prejudicing a case by commenting on
pending litigation, the HSF case.
In the same letter and articles, he discusses his own client’s pending
litigation, the “Hawks legislation” case but he assiduously avoids informing
the chief justice that the Hawks case, just like the HSF case, is also pending
in the High Court. The inescapable
conclusion is that this tactic by Hoffman is misleading and amounts to what is
known in judicial parlance as knowingly maintaining a false pretence. Similar to blatantly offering false
evidence, knowingly maintaining false pretences is another way a lawyer can
mislead the court. Where
counsel knows that the court is operating under a mistaken assumption and
actively maintains the false pretence, the lawyer is guilty of misleading the
court. An example of such
unacceptable behaviour would be a circumstance in which a judge is referring to
a witness by an improper title (i.e. referring to a Certified General
Accountant as a Chartered Accountant or referring to a defendant as a Chief
Inspector when he had been demoted to the rank of station sergeant without
being corrected. See Meek
v. Fleming, [1961] 2 Q.B. 366.
Failing to correct a false statement or maintaining a pretence is a
breach of a lawyer's duty of candour. But Hoffman’s case is worse and goes
beyond mere failure to correct a wrong impression.
11.7 In Hoffman’s case, he created a false
pretence that the Hawks legislation case was not pending or that it was
permissible for the Chief Justice to discuss the same with him – Hoffman failed
to disclose that he was actively litigating this matter in court or to alert
the Chief Justice that circumspection was required in discussing that matter as
such. His failure to do so
is particularly egregious in light of his self-righteous condemnation of the
Chief Justice’s alleged comments on a pending HSF case. Even worse, Hoffman goes to the
extent of stating that he would be in “honour and professionally bound to inform any client” about the
“Hague” conversation. Further,
Hoffman believes that, flowing from his imparting that information, his clients
“may or may not instruct me to apply for
your recusal on the basis of what you said to me, as recorded in the attached
draft article.” And yet his
so-called sense of honour and professionalism does not impel him to divulge to
the chief justice that one of these clients is Glenister who is actively litigating
a case inextricably linked with the earlier Glenister judgment of 2011.
12
Hoffman’s Continues to
Violate the Advocate-Witness Rule By Continuing to Act As Counsel in the
Pending “Hawks legislation” or Glenister Case.
12.1
If the GCB accepts that the advocate-witness rule is
valid, then it must act to immediately stop Hoffman from continuing to violate
the said rule in the pending Western Cape high court matter involving the Hawks
legislation. A practitioner must not appear as an advocate and, unless there
are exceptional circumstances justifying the practitioner's continuing retainer
by the practitioner's client, the practitioner must not act, or continue to
act, in a case in which it is known, or becomes apparent, that the practitioner
will be required to give evidence material to the determination of contested
issues before the court. In
Hoffman’s case, he has raised the case of future recusal application likely to
be brought by Glenister, his client.
In those aplications, Hoffman is likely to be a key material witness as
he claims that there is animosity and malice harboured by the Chief Justice
towards him. To allow
Hoffman to continue representing Glenister knowing fully well that his ultimate
intentions are to be a material witness in the matter will cause severe damage
to the credibility and integrity of our legal system. Hoffman must be issued with an immediate cease and desist
order requiring him to withdraw from the Glenister matter.
13. Hoffman’s Violation of Rule 3.5 of the Uniform Rules “Professional as
Opposed to Personal Interest.”
13.1 Pursuant to
3.5.1 of the Rules, counsel “should not become personally, as opposed to
professionally, associated with his client’s interest. He should not, e.g., stand bail for his
client, nor take part in a public movement for his reprieve.” Hoffman has tried using his alleged
personal encounter with the Chief Justice in the Hague to buttress the argument
that the Chief Justice cannot be impartial to his clients because of his
alleged antipathy towards Hoffman. In the recent JSC decision dismissing
Hoffman’s complaint, Judge Musi remarked that "it is indeed shocking that an
advocate can write a letter to a sitting judge demanding that the judge explain
his fitness for office."
13.2 As Hoffman readily
admits, he believes the chief justice is the “most unsuitable chief justice”
and he continues to hold the belief that the chief justice should never have
been appointed because “his values, position on important constitutional
issues, and track record” were “not fully dealt with during the interview
process in respect of the Chief Justice.”
Hoffman claims there is “malice harboured by the Chief Justice toward
[Hoffman], malice which has been festering since the complainant was critical
of the readiness of the Chief Justice for the high office he holds...” Although Hoffman fails to provide the
full context of his conversation with the Chief Justice, his own statements
amply justify the Chief Justice’s remark that Hoffman can challenge him but he
will continue to be frustrated! Hoffman is still smarting from the fact that
the Chief Justice was appointed in spite of the well-orchestrated campaign by
some activists and racist ideologues to prevent Mogoeng’s ascendancy to the
position of Chief Justice.
13.3 There is
nothing sinister about the remark allegedly uttered by the Chief Justice in the
Hague. It is an empirical fact and an undeniable truth that those like Hoffman
who continue to challenge the Chief Justice’s fitness for office more than two
years after his appointment will “continue to be frustrated.” The artificial and spurious arguments
they raise now are no different from the arguments raised during the
nominations hearings before the JSC.
Given that these insubstantial arguments were not considered valid to
derail Mogoeng’s nomination, it is the height of absurdity to assume that the
same old tired slogans can now be used to question Mogoeng’s legitimacy and
fitness for judicial office.
It is true that people embarking on the fruitless exercise of rehashing
arguments about Mogoeng’s alleged unsuitability for the position of chief
justice will indeed “continue to be frustrated.” Short of the cumbersome impeachment process our system does
not provide any other mechanism for malcontents to “recall” our constitutional
court judges, more especially the chief justice!
13.4 Hoffman
deftly attempts to project his own antipathy towards the Chief Justice as an
instance of malice Mogoeng has harboured against him since the days of his
nomination hearings. A more
appropriate analogy for Hoffman’s asinine antics can only be found in reported
cases involving hopelessly incompetent criminals, Ex parte Bentley, 849 So. 2d 997 (Ala. Crim. App. 2002). Indicted for murder during the course
of an armed robbery, Bentley found himself awaiting trial. He suffered a number
of adverse pretrial rulings by the judge.
Dissatisfied with pretrial rulings and without advising his attorney,
Bentley elected to convey his feelings directly to the trial judge. From his
jail cell, Bentley penned a stinging letter in which he told the judge he had “sold his soul to Lucifer,” and the judge
would “die like his lizard spy.”
Later, realizing the significance of his client’s conduct, Bentley’s lawyer
sought to recuse the trial judge verbally abused by his client. In his motion,
he contended that any judge who had received such a threatening letter could
not possibly be in a position to be fair and impartial. The trial court,
however, ruled, despite Bentley’s claim, recusal was not warranted. In
affirming the court’s order, the Alabama Supreme Court observed it was the
defendant, not the judge, whose wrongful conduct was at issue. Bentley’s
actions represent the extreme response of a party’s dissatisfaction with a
judge. Just like Hoffman, Bentley did not think twice about unleashing his
insulting tirade against a judge.
After creating a huge dilemma for his case, he tried reverse psychology
and sought to blame the judge – incredibly he asserted that the judge cannot be
fair and impartial.
13.5 Judges are
required to take a solemn oath to uphold the law and to be fair in all
circumstances. To suggest otherwise is a strike at the very core of judicial
principle. Hoffman carried his
deep-seated philosophical disagreements and racist antipathy towards the Chief
Justice to the extreme – he has no qualms about approaching the Chief Justice
in public to vent his frustrations or to continue his harangue and jeremiads
that the Chief Justice is not fit for office. He then claims that the less than friendly response he
received is evidence of some personal animosities against him. But it gets worse.
13.6 Hoffman
alludes to the fact that he would seek to enlist clients to join in his
personal crusade against the Chief Justice and that these clients may seek the
latter’s recusal on the basis of the Hague encounter and Mogoeng’s allegedly
discourteous response received by Hoffman. Hoffman’s argument is misplaced. In contrast to the
treatment of a judge's bias toward a party, disqualification or recusal is not
generally required when the judge dislikes only the party's attorney. See, e.g., Davis v. Board of School Comm'rs of Mobile, 517 F.2d 1044, 1050-51
(5th Cir. 1975), cert. denied, 425 U.S. 944 (1976) (refusing to construe bias
against attorney as being against party); United
States v. IBM, 475 F. Supp. 1372, 1383 (S.D.N.Y. 1979), aft'd, 618 F.2d 923
(2d Cir. 1980). Contra, Bell v. Chandler,
569 F.2d 556 (10th Cir. 1978) (disqualification merited by Judge Chandler's
repeated overdiscovery orders showing hostility toward prosecutor). As judge Satchwell stated in Moolla v Director of Public Prosecutions
& Others [2012] JOL 28655 (GSJ):
"[28] The issue in any application for recusal can
never be the personal views or opinions or predilections of a legal
representative towards judicial officers. The application must be confined
to whether or not the judicial officer
has conducted herself in such a way that there is a reasonable apprehension of
bias towards the litigant or her cause." (emphasis added)
13.7 Contrary to
Hoffman, the above statement in Moolla
recognizes that there is as much an obligation upon a judge not to recuse
himself when there is no occasion as there is for him to do so when there is.
Where the standards governing disqualification have not been met,
disqualification is not optional; it is prohibited. A recusal motion cannot be
decided in the abstract as Hoffman purports to do. Such a motion requires a
legally sufficient affidavit which must meet the following requirements: (1)
the facts must be material and stated with particularity; (2) the facts must be
such that if true they would convince a reasonable person that a bias exists;
and (3) the facts must show the bias is personal as opposed to judicial in
nature. Affidavits of bias are
strictly construed against the party seeking a judge’s disqualification.” See, United States v. Womack, 454 F.2d 1337, 1341 (5th Cir. 1972)
(“Because of the disruption and delay of the judicial processes that can be
caused by the disqualification of a trial judge, affidavits of disqualification
are strictly scrutinized for form, timeliness, and sufficiency.”); Cochran v. City of Norton, 87 f.3d 1315
(6th Cir. 1996) (citing Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir.
1988)). Given Judge Musi’s
findings that Hoffman has advanced “disingenuous” arguments and has engage in
“shocking” conducting by writing “letters to a sitting judge demanding that the
judge explains his fitness for office,” it is clear that the negative
credibility findings piling up against Hoffman himself will eventually torpedo
any recusal application filed by his clients based on his discredited theory
that he is a victim of Mogoeng’s alleged bias and “festering” malice.
13.8 Viewed with
this prism, Hoffman’s promise to inform his clients about Mogoeng’s alleged
dislike of him is unprofessional and actually signal an intent to misinform his
own clients for his own selfish ends. Our courts have not recognized that bias
towards an attorney may be imputed to a client as evidenced by the Moola case. Other courts have
overwhelmingly cautioned that bias towards an attorney is only rarely
sufficient to support disqualification. See, e.g., Panzardi-Alvarez, 879 F.2d 975, 984 (1st Cir. 1989) ("As a general rule, bias against the party
must be shown and it is insufficient to rely on clashes between the court and
counsel as the basis of a disqualification motion. There are, however, some
extreme cases in which the judge's attitude toward a party's attorney will be
so hostile that it would be reasonable to conclude that the judge will be unable
to remain impartial as to the client.") (internal citations and
quotation marks omitted); In re Beard,
811 F.2d 818, 830 (4th Cir. 1987) (" For
the bias against the attorney to require disqualification of the trial judge,
it must be of a continuing and personal nature and not simply bias against the attorney because of his conduct.");
Conklin v. Warrington Twshp., 476 F.
Supp. 2d 458 (M.D. Pa. 2007) ("bias
against an attorney may require disqualification . . . where the hostility is
so virulent and of such magnitude that it prejudices the judge against the
attorney's client") (internal quotation marks omitted).
13.9 Even
assuming that a court's demonstrated bias towards an attorney may in certain
rare circumstances be transferred to the client, Hoffman in this case has not
shown that the Chief Justice is biased or prejudiced against him as an advocate
-- let alone that any such alleged prejudice is of such a nature that it may be
imputed to his client. In fact, Mogoeng’s
truthful statement that an advocate who continues to challenge his fitness for
judicial office many years after his appointment “will continue to be
frustrated” is legally insufficient to warrant or justify disqualification. On
these facts, Hoffman cannot show “ ‘ “substantial evidence that there exists
such a personal bias, prejudice or interest on the part of the Chief Justice
that he would be unable to rule impartially. Nor did Hoffman show that the circumstances are such that a
reasonable person would question whether Mogoeng could rule impartially.
13.10 A judge who become exasperated
with an advocate’s insults and continued harangue about his fitness for
judicial office is not necessarily biased. Judges are not bloodless automatons devoid of feelings and
common-sense. See, Dunn v. Canoy, 180 N.C.App. 30, 38–39,
636 S.E.2d 243, 249 (2006) (holding that a judge was not required to recuse
himself from a case despite having become frustrated by the parties' failure to
reach a settlement, noting that, “[b]eyond [the judge's] reaction regarding
[the attorney's] actions in connection with the settlement agreement, the
record reveals nothing that could be construed as demonstrating any personal
bias, prejudice, or interest by [the judge].”). See, also, In re
Cooper, 821 F.2d 833 (1st Cir. 1987)( a controversy between a trial judge
and an attorney for parties to an action would not require disqualification of
the judge in absence of showing of bias or personal prejudice to the
parties.) In Gilbert v. City of Little Rock, 722 F.2d 1390, 1398-1399 (8th
Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984),
the trial judge in an unrelated case had entered an order recusing herself in
all cases involving one Attorney Walker or his firm because of remarks Walker
had made to her. Although Walker and one of his associates were expected to be
witnesses in the case presently before the judge, the judge refused to recuse
herself, and the Eighth Circuit found no abuse of discretion. See also United States v. Kelley, 712 F.2d 884
(1st Cir.1983) (judge's authorization of a wire tap order against counsel on
the ground that there was probable cause to believe counsel was obstructing
justice did not disqualify judge from presiding over criminal proceedings at
which the defendant was represented by the wiretapped counsel); United States v. Cook, 400 F.2d 877
(4th Cir.1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792
(1969) (that judge, who sat on proceedings which culminated in the suspension
of defendant's counsel because of counsel's unethical behavior in conducting
defendant's defense, thereafter presided at defendant's trial did not deny
defendant a fair trial; "[a] judge is presumed not to confuse the evidence
in one case with that in another," and therefore the judge was not
disqualified from presiding at defendant's trial); Honneus v. United States, 425 F.Supp. 164 (D.Mass.1977) (judge's
referral of trial counsel to Board of Bar Overseers because of counsel's
unprofessional conduct during defendant's trial did not require judge to recuse
himself from presiding over defendant's motion to vacate his conviction where
defendant was represented by new counsel in the post conviction
proceeding). It is true that
occasionally exceptional circumstances do arise where a judge's attitude toward
a particular attorney is so hostile that the judge's impartiality toward the
client may reasonably be questioned. See Bell
v. Chandler, 569 F.2d 556 (10th Cir.1978) (judge's disbarment of a United
States Attorney and five Assistant United States Attorneys in earlier
proceedings which had been procedurally deficient and wholly unjustified
demonstrated unlikelihood that the United States could obtain a fair trial).
Such situations are rare, and Hoffman’s rambling allegations against Mogoeng’s
alleged bias do not even come close to meeting the standard. In fact, there is a sinister motive on
Hoffman’s part to recuse chief justice Mogoeng in the anticipated re-run of the
Glenister Hawks legislation challenge.
Mogoeng previously ruled against Glenister. But the mere fact that he ruled adversely to Glensiter does
not establish bias either towards Hoffman or even Glenister. See, United States v. Kelley, 712 F.2d 884
(1st Cir.1983) where, unknown to defendant, a year earlier the trial judge,
finding probable cause to believe defense counsel was involved in a conspiracy
to obstruct justice, had authorized electronic interception of defense
counsel's phone. Thereafter, the judge found defendant guilty in a jury waived
trial. Noting that a judge's negative determination regarding a party's
credibility in a prior proceeding did not require disqualification, the First
Circuit concluded that a prior ruling adverse to a party's counsel similarly
would not require disqualification. Kelley,
712 F.2d at 890.
13.11 It is a
judge's job to make credibility determinations and inferences of partiality do
not arise simply because the job is performed. A judge's disagreement--even one strongly stated--with an
advocate over the propriety of the advocate’s continued insults and questioning
of the judge’s fitness does not reflect an attitude of personal bias against
the client. See Davis v. Board of School
Commissioners of Mobile County, 517 F.2d 1044, 1050-1052 (5th Cir.1975),
cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976) (controversy
between lawyer and judge over the propriety of the lawyer's use of a class
action device did not suggest bias against the client). In fact, conduct similar to Hoffman’s
artificial argument and tactics has incurred heavier sanctions of disbarment in
other comparable cases. See, In re Evans (attorney disbarred from
USDC after sending letter accusing magistrate of incompetence or pro-Jewish
bias, where attorney waited to send letter until after district court had
adopted magistrate’s ruling and Fourth Circuit had rejected summary reversal,
although full disposition at the Fourth Circuit was still pending).
Conclusion
I respectfully request that the GCB
expedite the investigation and resolution of this matter because Hoffman’s actions might adversely
impact pending cases, to wit the HSF and Hawks litigation matters. I believ that the evidence clearly
establish that Hoffman is guilty of misconduct and breach of ethical rules
including but not limited to the following:
A.
Hoffman’s communications impugned the qualifications and integrity of
the Chief Justice. It is
professional misconduct for a lawyer to make a statement that the lawyer knows
to be false or with reckless disregard as to its truth or falsity concerning
the qualifications or integrity of a judge.
B.
Hoffman has engaged in conduct involving dishonesty, deceit, or
misrepresentation, and has engaged in conduct in connection with the practice
of law that is prejudicial to the administration of justice, including to
knowingly, or through callous indifference, disparage, humiliate, or
discriminate against a judge on the basis of race and exercise of
constitutional rights and duties.
C.
Hoffman has acted unpropfessionally and engaged in violationof ethics
rules that govern candor toward the tribunal, fairness to opposing party and
counsel, and misconduct.
D.
Hoffman engaged in ex
parte communication with the Chief Justice on pending matters and commented on
these matters in the newspapers.
In doing so, Hoffman recklessly ignored his obligations not to make such
communications; consciously ignored the risk that such communications pose for
the reasonable apprehension of bias on the part of the recipient judge;
recklessly or negligently ignored the risk of Hoffman being in contempt of court;
knowingly ignored the palpable risk of Hoffman engaging in professional
misconduct.
E.
Hoffman’s conduct prejudiced the administration of justice. His improper communications with the
Court risk the derailment of pending litigation because of the perceived bias
of the Judge. Although the
initial charges of bias were without substance, the judge’s mere receipt of the
commication creates an appearance of bias and unfairly put pressure on the
lawyers involved in HSF and the Hawks litigation to scriutinize the matter to
ensure that their clients’ vital interests were not affected.
F.
Hoffman violated the principle that a judge’s decision should be made
on the basis of the evidence and arguments in the case, and not on the basis of
information or knowledge which is acquired out of court. The impact of Hoffman’s
ex parte communications with the Court is such that it created the risk of reasonable
apprehension of bias. At a minimum, at a minimum, the Ex Parte communications
give the appearance of knowing and wilful interference with the administration
of justice. Moreover they may
create the appearance of asymmetrical access enjoyed by the Hoffman to the
chief justice and the Concourt.
G.
Hoffman engaged in conduct
which constitutes contempt of court.
H.
Hoffman committed the offence of scandalizing the court.
I.
Hoffman has declared his intention to commit perversion of and gross violation
of the Advocate-Witness Rule.
J.
Hoffman’s media or press statements constitute per se violations of GCB
Rules of Professional Conduct
Mr. Hoffman has disgraced the
advocates’ profession, the judicial system and has demonstrated through his
fecklessly false utterances, misrepresentations and non-disclosures that he is
unfit to be an advocate and officer of the Court. I therefore demand firm and decisive action and may be
appropriate. Please feel free to
contact me if you need additional information in this regard.
Respectfully Submitted
Paul
M. Ngobeni
Paul M. Ngobeni
Yonaty, 97 A.D.3d at 142.
See,
editorial comment “Protect the judiciary Jul 31, 2012; Sowetan Editorial;
http://www.sowetanlive.co.za/incoming/2012/07/31/protect-the-judiciary
which stated that Chief Justice Mogoeng Mogoeng's statements at the weekend
that he would confront anyone who threatened the independence of the judiciary
is quite reassuring, especially in the light of what appears to be concerted
efforts by some politicians to weaken the judiciary and undermine the rule of
law. Referring to harsh criticism of Mogoeng by civil society and the media,
the editorial stated: “The criticism was so harsh that he could easily have
developed a frosty relationship with the Fourth Estate.
But Justice Mogoeng has proven he can
rise above criticism. He accepted an invitation to address the South African
National Editors Forum on Saturday. During the meeting he warned that
consistent and extraordinarily harsh criticism of the judiciary could impact on
the independence of judges.”
Mogoeng lashes claims of political
interference in judiciary
Mogoeng to
critics: Hamba kahle; 27 October 2012 20:02
Bill Mears, Justice Ginsburg
Details Death Threat, CNN.coM, Mar. 15, 2006,
Sandra Day
O'Connor, Op-Ed.,
The Threat to Judicial
Independence, WALL ST. J.,
Sept. 27, 2006, at A18.
R v Simpson; Ex parte Morrison (1984)
154 CLR 101 at 104 per Gibbs CJ.
It states,
(a) a lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to
be a witness on a significant issue of fact unless:
(1) the testimony relates solely to an uncontested issue;
(2) the testimony relates solely to the nature and value of legal services rendered in the
matter;
(3) disqualification of the lawyer would work substantial hardship on the client;
(4) the testimony will relate solely to a matter of formality, and there is no reason to
believe that substantial evidence will be offered in opposition to the testimony; or
(5) the testimony is authorized by the tribunal.
