On Friday, 29 July 2022, the Judicial Conduct Committee (JCC) of the Judicial Service Commission (JSC) found that former Justice of the Constitutional Court, Johann Kriegler, had breached the Code of Judicial Conduct (the Code) when he, on 1 March 2021, made a public statement in the media that Judge President John Hlophe of the Western Cape High Court in Cape Town was “unfit to be a judge”.
The specific provision of the Code in question is article 11(f). That provision requires judges, including retired judges, to “refrain from public criticism of another judge” and act with courtesy and collegiality (which the Code says are “indispensable attributes of a judge”) towards other judges.
It is not a breach of the provision if the judge who does the public criticism does so in circumstances where the criticism relates to judicial proceedings in which the judge being criticised is serving as a judge, or to “scholarly presentation made for the purpose of advancing the study of law” (eg, a lecture or symposium or workshop). Ngalwana’s complaint, however, was that Justice Kriegler’s criticism of Judge President Hlophe was none of these but “mean-spirited and seems to have been intended to sting”.
By the hand of a Judge of the Supreme Court of Appeal (in his capacity as Chairman of the JCC), the JCC ordered Justice Kriegler
“within fourteen days (14) days of receipt of this ruling to retract [the] statement … in the form of an email to [Adv Vuyani Ngalwana SC].”
But why Ngalwana SC? This was, so the JCC reasoned, because Ngalwana – not Judge President Hlophe – is the Complainant.
On the face of it, this reasoning seemed odd to Ngalwana since the purpose of the complaint was to vindicate the integrity of the Judiciary. He said his purpose was
“to vindicate the integrity, dignity and independence of the Judiciary and the judicial system which are, in my respectful submission, compromised by the sustained wounding public ad hominem attacks of Justice Kriegler on Justice President Hlophe. The kind of sustained attack mounted by Justice Kriegler on Justice President Hlophe is not an attack only on Justice President Hlophe; it is an attack on the Judiciary and the judicial system of South Africa. Not only that, Justice Kriegler’s attack on Justice President Hlophe has given heart to some Judges of the Western Cape High Court, of which he is the leader, to defy his leadership, including refusing to sit with another judge. This kind of attitude has consequently heralded an open season on judges even by journalists, as demonstrated by the extraordinary attack by a journalist of a publication named Daily Maverick on two Justices of the SCA following the judgment inJiba and Another v General Council of the Bar of SA and Another; Mrwebi v General Council of the Bar  3 All SA 622 (SCA) …“
Asked by Ngalwana to clarify whether the order that Justice Kriegler send his retraction to him (Ngalwana) and not Judge President Hlophe had not been made in error, the JCC confirmed that
“the order is correct that Justice Kriegler should send the retraction to you, as the complainant before the Judicial Conduct Committee is Adv Ngalwana and not Judge President Hlophe”
And so it was, that Ngalwana – who expressly sought to vindicate the integrity of the Judiciary and not his own – became burdened with a retraction by a retired Constitutional Court Judge of a statement that was not targeted at him; and this by reason of the coincidence of his being the one who lodged the complaint. So, there the matter rests.
I have been asked by numerous members of the media to comment on the ruling of the JCC for “sound bite” purposes. In response I have offered to provide the full Complaint, Justice Kriegler’s Response, and my Reply to Justice Kriegler’s Response. I did so because “sound bites” have an uncanny way of taking the meat out of the bones of a case, and leave a skeleton that is all things to all readers. As I believe that the story of this complaint deserves far better treatment than being left to interpretation of “sound bites”, I decided to publish the entire Complaint, Response, Reply and Ruling at the same time on one platform – here.
“In any democratic criminal justice system there is a tension between, on the one hand, the public interest in bringing criminals to book and, on the other, the equally great public interest in ensuring that justice is manifestly done to all, even those suspected of conduct which would put them beyond the pale. To be sure, a prominent feature of that tension is the universal and unceasing endeavour by international human rights bodies, enlightened legislatures and courts to prevent or curtail excessive zeal by state agencies in the prevention, investigation or prosecution of crime. But none of that means sympathy for crime and its perpetrators. Nor does it mean a predilection for technical niceties and ingenious legal stratagems. What the Constitution demands is that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin, fairness is an issue which has to be decided upon the facts of each case, and the trial judge is the person best placed to take that decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.”
In that case an accused asked the Constitutional Court to exclude from evidence in an upcoming trial certain evidence that he said was obtained by unlawful search and seizure operations. The Constitutional Court (per Justice Kriegler) said that is a decision for the trial court to make, not the Constitutional Court before the trial had been concluded.
Anyway, back to my reason for lodging this complaint.
It is my fervent hope, for the sake of the integrity of the South African legal profession, and the Judiciary in particular, that a similar complaint about a judge does not have to be lodged ever again.
Throughout my involvement in the tiff between Justices of the Constitutional Court and Judge President Hlophe between 2008 and 2011, I have always been driven by principle, not some over-zealous desire to defend a human being under any circumstances. In South Africa, there is a deep-seated culture of treating black professionals as somehow lesser creatures than their white counterparts and of deserving less reverence as professionals than their white counterparts. Part of what perpetuates this culture is our own contribution to it as black professionals. I would have none of it.
An observation by Life and Leadership coach, Dr Claudelle von Eck, at the July 2022 official launch of Strategic African Women in Leadership (SAWIL) stings to me as a black South African. She said,
“Systems tend to resist change, and if we’re not addressing the foundations of the inequalities and the root of the problem, then we’re just speaking to the symptoms and not the cause. And if we’re going to step into a new space but just become carbon copies of the system, to emulate the system, then we can’t expect it to change.”
It was as if Dr von Eck was speaking directly to me. Although the observation (made in July 2022) came long after I had lodged the complaint against Justice Kriegler in April 2021, I feel as if I was driven by a burning desire not to become a “carbon copy of the system” that encourages by condoning the unceasing abuse of black professionals through inertia or supine disinclination to speak out and do more in the face of what has become open season on black professionals in South Africa.
I accept that as Counsel, that should never be the motive for accepting a brief. In fact that is the worst possible reason for Counsel to accept a brief because then the line between your duty as Counsel and your personal feelings can easily become blurred. It is, in part, that realisation that informed my decision to pull out of the legal team that represented the Judge President at the beginning stages of his litigation against the Justices of the Constitutional Court.
Having said that, however, I am reminded of Justice Madlanga’s observation that
“As a judge’s make-up, outloook on life and indeed entire being follow her or him. Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a super-human feat.”
I believe that this is true of us all. If we are truly honest with ourselves, we are all creatures of the societies or communities from which we spring. I am from a society that fights for what it believes to be right, whatever the circumstances. Therefore, even though I know that accepting a brief for principle is not a good idea (as principle tends to be the enemy of effective advocacy) I cannot rule out the possibility of doing so again. In the South African socio-political climate that is defined by race perspectives, some of the sound counsel of the advocates’ profession are just too difficult to internalise.
For a full perspective of the complaint against Justice Kriegler, here are the links to
The South African public’s understanding of the long-running spat between the Cape Judge President, on the one hand, and Justices of the Constitutional Court acting as an institutional block, on the other, seems informed by much factual ellipsis.
In this short paper, I try to present some of the facts that, in my assessment, seem to have disappeared from public discourse on this case, resulting in some members of the public and analysts making some of the most extraordinary statements about the case. In the process I make some of my own observations about those facts which, if considered, may in my assessment possibly have resulted in a different outcome from the one recently reached by the Judicial Conduct Tribunal of the South African Judicial Service Commission on 9 April 2021.
In writing this paper, I am moved by a concern about the dominant fact-free narrative that seems to be treated as authoritative in public commentary on this case. My purpose, therefore, as the Code of Conduct for Legal Practitioners allows, is to help guide public understanding of the issues that have arisen or may yet arise in the course of the further conduct of this process, if any should follow.
As you read this paper, be aware that I was part of the Judge President’s legal team in 2008 until April 2009.