Via Email:
Adv
P Hoffman, SC
Director:
Institute for Accountability in Southern Africa
P O
Box 33
NOORDHOEK
7979
Re: Demand that Hoffman SC Voluntarily Relinquish Status As
Senior Counsel or Request that President Zuma Annul or Cancel Hoffman’s
Honorific “Silk” Title.
Dear Advocate Hoffman:
- The HENT trusts that this letter finds you in good health and in good spirits. We are confident that by now you have received the misconduct Complaints filed against you by the HETN and Dr. Paul Ngobeni separately. In addition, you have acknowledged publicly your receipt of the decision of the Judicial Conduct Committee (JCC) dismissing your complaint of gross judicial misconduct against Chief Justice Mogoeng.
- We are writing to invite you to voluntarily relinquish your status as a senior counsel (“silk”) in light of the outrageous, unsupported, disrespectful, vituperative, deliberate, and premeditated charges you leveled against the Chief Justice Mogoeng. The tone of your articles, letters, and JSC complaint was spiteful and malicious and your overall conduct was correctly described as “shocking.”
- You broadcasted the same with the clear intention to embarrass, insult and humiliate the Chief Justice and to detract from the stature of his position as leader of the judiciary. Your allegations were not blurted out in the heat of the moment but were in writing and after consideration of the issues. They were part of a calculated racist plot to sideline, silence, marginalize, intimidate and render impotent the Chief Justice in regard to a very important issue, transformation, which is at the heart of our constitution.
- We hereby inform you that, if you fail to relinquish the Senior Counsel status voluntarily, the HETN will be submitting a request to President Zuma to cancel and annul your silk status because of your disgraceful and despicable conduct detailed in the documents referred to above.
- The two senior judges on the JCC (including a Judge President) unanimously rejected your false allegations that Mogoeng engaged in a public political debate about a case. They 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 rejected your claims that the Chief Justice participated in a public debate in a manner that undermined the standing and integrity of the judiciary. The judges ruled that 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.”
- Most important for the purpose of this letter is that the JCC found your assertions against Mogoeng “rather disingenuous” and “simply far-fetched”. The JCC highlighted your provocative actions against Mogoeng and stated, “In his letter to the respondent dated 18 June 2013 the complainant hints at an ongoing confrontation with the respondent.” The JCC noted that you disclosed that you 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.” Disingenuous which means inter alia " cunning, deceitful, deceiving, delusive, delusory, designing, devious, dishonest, dodging, evasive, false, false hearted, feigned, fraudulent, hypocritical, insidious, insincere, lacking frankness, lying, mendacious, misdealing, misleading, parum candidus, prevaricating, scheming, shifty, sly, spurious, tricky, truthless, uncandid, underhanded, unethical, ungenuine, unprincipled, unscrupulous, unstraightforward, untrustworthy, untruthful, wanting in candor, wily, without truth" - clearly implies dishonesty.
- A lawyer who is disingenuous in his approach to the law and who engages in "shocking" acts impugning the qualifications and integrity of a sitting chief justice does not deserve to keep an honour conferred by the President.
- These are serious findings with implications for the Minister of Justice and the President (both in his capacity as head of the executive and head of state) in terms of section 165 of the Constitution. That section states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. Further, it states 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. This means both the Minister of Justice and the President are duty-bound to take action against you for your “shocking” conduct which constitutes amongst other things, contempt of court and scandalizing the judge.
- In considering the harm you have caused to the judiciary and administration of justice, the executive must 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.
- In addition, your actions have implications for the President’s powers as head of state. As you know, the President’s powers in this regard are set forth in Section 84(2)(k) of the Constitution provides as follows:
"Powers and functions
of the President:
(1) The President has the powers
entrusted by the Constitution and legislation, including those necessary to
perform the functions of Head of State and head of the national executive.
(2) The President is
responsible for –
…
(k) conferring honours."
- 12. The SCA recently concluded in General Council of the Bar and Another v Mansingh and Others (SCA) (unreported case no 417/2012, 15-3-2013) (Brand JA) (March 2013) that the power to confer honours bestowed upon the President by section 84(2)(k) of the Constitution included the authority to confer the status of 'senior counsel' on practising advocates. Logically, that power includes the right of the President to withdraw the honour if the conduct of the award holder or his credibility has made him unworthy of continuing to be a member of the honorees’ group or that it is no longer proper to keep the honours because the holder’s credibility is found to be questionable.
14.HETN fully supports the independence of the legal profession but does not view such independence as synonymous with protection of white male interests. Nor do we believe that the price for such independence must be the dignity and integrity of black judges. The President’s failure to act in your case will raise the following troubling questions about his own credibility, his fealty to the Constitution and the credibility of the party he leads, the ANC.
15. We
suspect that you will adopt an ostrich-like posture and choose to fight calls
for the annulment of your status as silk.
Most probably, you will mobilize your fellow white liberals to resist
calls for the annulment or cancellation of your silk status under the guise of
protecting the independence of the profession. But we are facing the hard cold facts here - you have by
your disgraceful conduct created a palpable risk that the President, by acting
against you, may be taking steps that may not bode well for the independence of
the advocates’ profession.
16. HETN
does not wish to see a situation where any president becomes a super-czar
exercising dominion over the advocates’ profession. But the converse situation can also not be allowed to
fester. The
President who confers honours such as silk status cannot be turn a blind eye
when his “honorees” engage in dishonest and shocking manner and in ways
demonstrating that they lack the moral fitness to continue as advocates.
17. The President may not stand idly by when
persons upon who he has conferred national honours are undermining the rule of
law, acting in contempt of court and scandalizing the judiciary. As you know, the extant misconduct
complaints allege that you are no longer “a fit an proper person” to remain on
the roll of advocates. That
requires a higher standard of proof than simply withdrawing an honorific title
bestowed on a person simply as a prerogative. It is true that the scope and nature of the requisite
scrutiny has been heightened by the recent Constitutional Court ruling in Democratic
Alliance v President of South Africa and Others (CCT 122/11) [2012]
ZACC 24 (5 October 2012). There,
the court dealt with the appointment of “a fit and proper person, with due
regard to his or her experience, conscientiousness and integrity” as NDPP. It ruled that in undertaking the
appointment task, there is an objective standard which requires that the
decision-maker not ignore adverse comments about the putative candidate. It ruled that in regard to Simelane,
the Ginwala Enquiry’s report which criticized Simelane “…represented brightly
flashing red lights warning of impending danger to any person involved in the
process of Mr. Simelane’s appointment to the position of National Director. Any
failure to take into account these comments, or any decision to ignore them and
to proceed with Mr. Simelane’s appointment without more, would not be
rationally related to the purpose of the power, that is, to appoint a person
with sufficient conscientiousness and credibility.” Ultimately the Concourt set aside Simelane’s
appointment even though the judgment of the Court stated very clear that no
finding was made that Simelane was unfit. The court expressly said:
“90.
This is not to say that Mr. Simelane cannot validly be appointed National
Director. He may have an explanation and may well be able to persuade the
President that he is a fit and proper person and should be appointed.
91.
Given this finding, it is unnecessary for this Court to determine whether Mr.
Simelane is in fact a fit and proper person to be appointed as the National
Director or whether the President had an ulterior purpose in making the
appointment. There is no finding in relation to these issues."
18. Notwithstanding
this Concourt pronouncement, you and your cohorts have been most vociferous in pontificating
about the Ginwala report and Simelane’s alleged unfitness. You have done so to serve your own
politically motivated agendas and actually exposed the hypocrisy of those who
claim to be for human rights and rule of law but continue to ignore court
judgments.
19. You were a major cheerleader of those who argued that on the basis
of Ginwala’s criticism Menzi Simelane was not a fit and proper person to be
appointed as the NDPP.[1] In fact, you gleefully referred
to the Bar investigation and alleged misconduct complaint filed against
Simelane as an additional reason why he could not be considered fit and
proper.
20.The HETN wishes to know
from you whether in your moral compass you see any appreciable difference
between criticism leveled at an advocate by a non-jurist retired politician on
the one hand and a unanimous decision by two sitting judges describing the
advocate as “disingenuous” and criticizing his provocative and ‘shocking” behaviour
on the other? Given that the Ginwala criticism ultimately dissuaded Zuma from
appointing Simelane, why should the same Zuma blithely ignore the harsh
criticism leveled at you by two judges and allow you to keep the “honour” as
silk?
21. We
submit that your own reaction and public statements in regard to the Simelane
matter make a compelling case for the annulment of the silk honor bestowed upon
you. You personally crowed and
gloated over these adverse comments by Ginwala and ejaculated that these findings
were" carefully considered and seriously adverse credibility,
reliability and incompetence findings against Simelane” “which Radebe could
not “simply wave a magic wand” to make them disappear.
22. You stated: “The President ought to
reconsider the appointment of Simelane now
that so many worms are crawling out of the woodwork. It is the right thing to
do.” You issued an advice to the President and stated “One would hope that
when Zuma makes his final appointment of the NDPP that he appoints someone with
probity, integrity, standing and
experience, instead of a dishonest cadre.”[2] You hailed pronouncements against
Simelane in the following terms:
“Judge Navsa devotes a good part of the judgment to
a magisterial summary of the relevant legal and constitutional considerations
that underpin our new democratic order under the rule of law. No functioning constitutional democracy can
afford a chief prosecutor whose integrity and probity is the subject matter of
what the judgment in his favour, now overruled, describes as a "formidable
onslaught on Mr. Simelane's fitness and propriety for appointment as
NDPP."[3]
23. The
question to you now is whether Zuma can ignore the “seriously adverse credibility, reliability and incompetence findings
against” you by the two senior judges, including a Judge President? Should
he allow you to keep an honour as senior counsel despite your disgraceful
conduct?
24. Ironically,
you criticized Minister Radebe for failing to resign or take responsibility on
the Simelane matter. You stated:
“In
a mature democracy, there can be little doubt that the Minister would feel
obliged to fall on his sword and resign. SA is not a mature democracy and no
one is anticipating a letter of resignation from Mr. Radebe, despite the poor
quality of the advice he gave the President to turn a blind eye to the obvious
shortcomings of Mr. Simelane, as vividly documented in the findings of the
Ginwala commission into the fitness for office of his predecessor, Vusi Pikoli.
The finding on this point is unambiguously condemnatory of both Mr. Radebe and Mr.
Simelane:
"Dishonesty is dishonesty, wherever it occurs.
And it is much worse when the person who had been dishonest is a senior
government employee who gave evidence under oath. Although not a court, the
Ginwala Commission was about as important a non-judicial fact-finding forum as
can be imagined." [4]
25. Once
again, the question to you is whether you consider yourself bound by the same
honourable principle of falling on the sword and would you resign at least your
silk status in light of the adverse findings against you? Mr. Hoffman, you have used every
opportunity to raise your objections against the appointment of persons who are
merely accused or against whom investigations were pending. For instance, you raised
the most stentorian objection when newspapers reported that Zuma had approached
Magistrate Stanley Gumede, to become the new National Director of Public
Prosecutions (NDPP). [5] You first criticized Minister Radebe
and stated:
“In choosing Simelane, Zuma had taken the advice of
Justice Minister Jeff Radebe and had ignored the Ginwala Commission of
Inquiry’s finding that Simelane should face disciplinary proceedings because of
the poor quality of his evidence before it.
In fact, the CC found Simelane’s evidence had been
so contradictory, it was indicative of dishonesty and raised serious questions
about his conscientiousness, integrity and credibility. Such a person could
never rationally be appointed as NDPP – a position which by its nature requires
a person of conscientiousness and integrity. Zuma would be extremely unwise to
make the same mistake twice.”
26. HETN
raises a pertinent question whether your own “disingenuous” submissions and
“shocking” conduct are not sufficient to warrant removal of the honour as
“silk.” Would Zuma “be
extremely unwise” to let you keep a national honour in the face of clear and
convincing evidence that you have impugned the integrity of a chief justice? Is it consistent with the rule of
law in a “mature democracy” to ignore irrefutable evidence indicative of your
dishonesty and to turn a blind eye to “shocking” conduct which raises serious
questions about your “conscientiousness, integrity and credibility?”
27. Would it not be out of
kilter with the equality clause of our constitution for Zuma to let you keep an
honorific title as silk under circumstances where Simelane was summarily denied
appointment on the basis of a Ginwala opinion and without being given the fair
chance to answer the allegations against him? Obviously you were never inconvenienced by any though
over these trifling concerns!
28. HETN
takes note of the fact that you recently penned an article, “Zuma and cohorts guilty of subverting rule
of law”[6]
in which you accused Zuma of failing to act with expedition and of deliberately
undermining the rule of law. You stated:
“The slow progress of the review of the
decision not to prosecute Zuma is at least in part attributable to the tactics he
regularly employs in litigation. Only
when he ran out of delaying stratagems and was faced with applications to
compel him to make discovery of documents did he eventually abandon all civil
claims for damages that he had pending against various members of the press and
newspapers. With the panache reserved for
the truly morally bankrupt, spin was put on this long-overdue decision to
make it look as if something noble and wise was being done to promote national
reconciliation, free speech and the right to a critical opinion.”
29. By
failing to act against you with expedition, Zuma runs the risk of portraying
his own ruling party, the ANC, as a party that is overly eager to act against
blacks accused of ethical lapses while whites who arrogantly insult even the
leader of the judiciary, the chief justice, are hero-worshipped and rewarded
without being stripped of the honours bestowed by the Presidency.
30. The Concourt never found that
Simelane was “ not fit and proper” but the public would not know that by reading
your writings and those of the DA Leader, Zille. The foundation of the DA’s case against Simelane was the
alleged “misleading and untruthful
evidence” he gave during the 2008 Ginwala Inquiry. As fate would have it, you as a senior counsel have now been
found to be dishonest, deliberately provocative and shocking.
31. The HETN will wait with baited breath
for the reaction of your white liberal cohorts who are likely to invoke all
sorts of artificial legal sophistry to portray the issue as independence of the
Bar instead of simply recognizing it for what it truly is - a glaring case of
white hypocrisy and dishonest methods used by the anti-transformation lobby!
32. Advocate Hoffman, we implore you to spare the country and the advocates’ profession of a
pending constitutional crisis by gracefully falling on the sword and resigning.
Imagine if the two judges of the
JCC had labeled any senior black advocate as "disingenuous" or
described his behavior as "shocking?" There is no doubt that most of
your white colleagues and usual suspects from the DA would be red as boiled
lobsters and frothing at the mouths demanding immediate action, including
disbarment. Should the President
fail to act on the matter of the annulment of your silk status, HETN will in
assuredly take legal action to effect the annulment of the honour by the very
judiciary you have insulted.
33. Should HETN succeed in that endeavor what would happen to those
advocates who faithfully served apartheid, a crime against humanity and who
continue to insult black judges such as Hlophe and Mogoeng?
34. If the President acts against you, it
is very likely that the activities of other silks may also come under
scrutiny. We believe there is a
lawful way for you to accomplish the withdrawal. Although the procedure provided under Section 8A of the
Admission of Advocates Act 74 of 1964 is technically not applicable to you, we
suggest that you explore a voluntary resignation option for the sake of the
Profession and the system of administration of justice. The Act provides that the “President may at the request of any person
appointed as a senior counsel of the Republic while in the service of the
State, withdraw such appointment, and thereupon such person shall revert to
the status which he had as an advocate immediately prior to that
appointment.” This suggests that
it is feasible for you to quit gracefully and without much fanfare!
[1] Defending
the Indefensible - Menzi Simelane; http://www.ifaisa.org/Defending_the_Indefensible.html
[2] Zille hails
Concourt ‘victory’ on Simelane; October 6 2012 By Gaye Davis and Shanti
Aboobaker; http://www.iol.co.za/news/politics/zille-hails-concourt-victory-on-simelane-1.1397801#.UjQbBoWE44A
[3] Simelane never fit to be NDPP; Paul
Hoffman; 05 December 2011; http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=270377&sn=Detail&pid=71654
[4] The Simelane judgment: Winners and losers;
Paul Hoffman; 10 October 2012; http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=331560&sn=Marketingweb+detail
[5] Yet another unwise pick for NDPP; Paul
Hoffman; By Daily Dispatch on June 5, 2013 in Opinion http://www.dispatch.co.za/yet-another-unwise-pick-for-ndpp/
[6] Zuma and cohorts guilty of subverting rule
of law; Paul Hoffman; By Daily Dispatch on June 5, 2013 in Opinion ; http://www.dispatch.co.za/zuma-and-cohorts-guilty-of-subverting-rule-of-law/
No comments:
Post a Comment