An open letter to Chief Justice Pius Langa and the judges of the Constitutional Court: May it please the court. You recently issued press releases on your very significant — and very seriously mistaken — decision to file a joint complaint with the Judicial Service Commission (JSC) against Cape Judge President John Hlophe.

Because the decision and the procedure followed violate a plethora of legal principles recognised in all civilised countries, I wish to point out that the court would drastically erode the public’s acceptance of the judiciary as the guardian of the law, if not make it an object of ridicule.

As you all know, natural justice insists that justice should not only be done but seen to be done. The two classic principles, nemo iudex (which means entitlement to an impartial court) and audi alteram partem (the right to a fair hearing) are fundamental to the visible and uncontroversial justness of any trial or judicial decision.

If media reports that all 11 judges of the court participated in the complaint against Hlophe are correct, then your court has unquestionably violated the common-law adage that no man should be a judge in his own cause.

Accepting for a moment your allegation that Hlophe, acting at the behest of or in a misguided bid to assist a litigant, improperly approached one or more judges of the Constitutional Court, it was incumbent on those judges to individually file their complaints against Hlophe with the JSC.

This filing should be done in confidence and in a dignified manner unaccompanied by the unseemly judicial grandstanding witnessed in the Hlophe matter. After all, Chief Justice Langa recently made the same point when lambasting those who cried foul over the Supreme Court of Appeal’s incorrect attribution of a “generally corrupt relationship” comment to the trial judge in the Schabir Shaik judgment. He correctly asserted that the correct procedure would have been to lay a complaint with the JSC.

He went on to say “… there is a heavier responsibility on people in authority and/or leadership to desist from indulging in free-for-all of public recriminations and vilification of the judiciary…. Conduct of that sort undermines the constitution and can (weaken) both the judiciary and our democracy.” I accept that each member of our judiciary is duty-bound to report to the JSC any malfeasance by fellow judges. But I also accept the notion that in doing so, the whistle-blowing judge must comport with the principles and values of due process and rule of law undergirding our constitution.

The complaining judge would certainly be prohibited by judicial ethics from contaminating the rest of the court with gossamer or otherwise parading her untested and unproven allegations as facts.

Judicial ethics would certainly preclude such a complaining judge from arranging that all 11 judges, in a well-orchestrated show of solidarity, issue statements adopting the said complaint as a complaint of the entire court. Judicial ethics would certainly prohibit that aggrieved judge from further deliberations on the Hlophe matter because of the apparent and palpable conflict of interests.

In simple English, no matter how the remaining court members viewed the complainants’ credibility, these complainants had no business participating further in the matter in any judicial capacity whatsoever. From the moment they raised the matter, they were partisans in the controversy and the rest of the court was duty-bound to restrict or curtail their participation in it, in strict conformity with natural justice.

Furthermore, by adopting the said complaint as a consolidated “class action” complaint by all judges of the Constitutional Court (including those who were not contacted by Hlophe) you have effectively put judicial imprimatur on a one-sided complaint process and made findings you felt emboldened to publicise in the press, notwithstanding that the accused had not been afforded a due-process hearing.

The Hlophe case cried out for extreme caution aimed at ensuring the impartiality of the remaining uncontaminated pool of jurists. Sadly, your court threw these hallowed constitutional principles overboard and unleashed a media frenzy at Hlophe’s expense. In egregious violation of the principles of natural justice, Hlophe was denied an opportunity to respond — he was just tarred and feathered in the press as a corrupt judge.

In what court would Hlophe challenge the decision on procedural or constitutional grounds, given that the entire court has transformed itself into a complainant? You may have unleashed a tiger of a constitutional crisis that is destined to haunt us all for many years to come.

You collectively failed to consider issues of judicial misconduct and judicial incompetence from a rule-of-law perspective. This requires that presumption of innocence is protected and observed and that laws are administered fairly, rationally, predictably, consistently and impartially. Fairness requires reasonable consideration of the rights and duties asserted.

Even if a member of the court was aggrieved by Hlophe’s actions, the JSC and not the Constitutional Court is the forum in which she is to lodge her complaint. From the perspective of an uninformed member of the public, it would appear on getting the alleged complaints from a few judges, the court hastily convened a kangaroo court, which purported to consider and pronounce on merits of the said complaints without giving the accused a chance for a fair hearing.

It went further and published its vilification of a sitting judge president in all the newspapers and so forced him to defend himself by dismissing the accusations as “utter rubbish" and “another ploy to damage my reputation".

You may recall that the European human rights court stated in Allenet de Ribemont versus France that “the presumption of innocence. … will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty….”

Consistency requires similar cases to lead to similar results. How can Langa, on the one hand, chastise those who complain about judges publicly or insist that their complaints must first be filed with the JSC before they are debated publicly and, on the other hand, approve a bizarre procedure in which the entire court publicly endorses and pronounces upon the validity of a complaint before the JSC even gets it?

Impartiality requires the decision-maker to be indifferent to the outcome. This is a principle completely forgotten by the judges here — a judicial decision in which the complainants are acting as judges is not only invalid but is highly scandalous.

The rule of law is also best served where there is a high level of public confidence in the judiciary. Unfortunately, the court’s exiguous complaint about Hlophe can only arouse public suspicion — it appears to be more concerned with politicking or providing support to the complaining judges rather than substantial justice.

You all forgot your first duty as members of the highest court in our democracy, which is to maintain public confidence in the judiciary by ensuring substantial allegations of misconduct are handled forthrightly and appropriately.

Many legal scholars viewed with a jaundiced eye President Thabo Mbeki’s recent award of the Order of the Baobab to a sitting chief justice at the time when the court has pending before it the Jacob Zuma appeals. To a reasonably astute member of the public, the court’s disposition of the Hlophe matter is therefore not a confidence-builder by any means.

It only fuels suspicions that judges, who traditionally do not favour investigating their own, will do so for expediency and when a particular judge is deemed or rumoured to be belonging to the opposing political camp. Simply put, your collective complaint is not only procedurally flawed or invalid, it is based on double hearsay and a violation of the values that underpin our constitution.

Hlophe is entitled to have it dismissed in its entirety. For these reasons, I respectfully dissent.

Ngobeni is deputy registrar of legal services at the University of Cape Town.

With acknowledgements to Paul Ngobeni and Business Day.