THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  697/08

LANGA CJ,

First Appellant
MOSENEKE DCJ

Second Appellant
MADALA J

Third Appellant
MOKGORO J

Fourth Appellant
O’REGAN J

Fifth Appellant
SACHS J

Sixth Appellant
NGCOBO J

Seventh Appellant
SKWEYIYA J

Eighth Appellant
VAN DER WESTHUIZEN J

Ninth Appellant
YACOOB J

Tenth Appellant
NKABINDE J

Eleventh Appellant
JAFTA AJ

Twelfth Appellant
KROON AJ

Thirteenth Appellant

and

HLOPHE, MANDLAKAYISE JOHN

Respondent

Neutral citation: Langa v Hlophe (697/08) [2009] ZASCA 36 (31 MARCH 2009)

Coram:
HARMS
DP,
STREICHER,
MTHIYANE,
NUGENT,
CLOETE,
PONNAN, MLAMBO, SNYDERS AND MHLANTLA JJA
Heard:
23 MARCH 2009
Delivered:
31 MARCH 2009
Updated:

Summary:
Judge – complaint of judicial misconduct by other judges – alleged
violation of accused judge’s constitutional rights – no right to be heard
before complaint filed and media statement issued

ORDER

On appeal from: High Court of South Africa (WLD): Mojapelo DJP (Moshidi J and
Mathopo J concurring and Marais J and Gildenhuys J dissenting), a Full Bench
sitting as a court of first instance.

(a)
The appeal is upheld.
(b)
The order of the court below is replaced by an order dismissing the
application.

JUDGMENT

THE COURT:

INTRODUCTION
[1] This is an appeal from a judgment of the High Court, Johannesburg, relating
to a dispute between Justices of the Constitutional Court (‘the CC’) and a Judge
President of a high court. The court below was unusually though permissibly
constituted as a full bench with five judges (Supreme Court Act 59 of 1959 s
13(1)(a)). The majority (Mojapelo DJP with Moshidi and Mathopo JJ concurring)
upheld the respondent’s claim for declaratory orders in part (Hlophe v Constitutional
Court of South Africa and Others (08/22932) [2008] ZAGPHC 289, [2009] 2 All SA
72 (W)). Marais J and Gildenhuys J in separate judgments but for similar reasons
disagreed; they would have dismissed the application. (References in this judgment
to the high court judgment are to the judgment of the majority.)

[2] The high court granted the appellants leave to appeal. The respondent sought
leave from the high court to cross-appeal to the CC notwithstanding that high courts
(and, for that matter, this court) are not entitled to grant such leave. He asked, in the
alternative, for leave to cross-appeal to this court, but that application was fatally
defective. In the event both applications were struck from the roll.

[3] As a rule this court sits as a panel of either three or five judges but in view of
the importance of the matter, and taking into consideration the request of the
appellants, in which the respondent acquiesced, it was directed that the matter be
heard by a larger panel (s 12(1)(c) of the Act).

[4] At the request of the court Adv NC Maritz SC and KS Hassim of the Pretoria
Bar filed concise heads of argument as amici curiae. We wish to express our
appreciation for their contribution.

[5] The appellants are the Chief Justice (Langa CJ); the Deputy Chief Justice
(Moseneke DCJ); eight CC Justices (Mokgoro J, O'Regan J, Sachs J, Ngcobo J,
Skweyiya J, Van Der Westhuizen J, Yacoob J, and Nkabinde J); a recently retired
CC Justice (Madala J); and a member of this court (Jafta AJ) and one of the Eastern
Cape High Court (Kroon AJ) who both were at the time acting CC judges. The
respondent is the Judge President of the Cape High Court, Judge MJ Hlophe.

[6] The case arose from a complaint of judicial misconduct laid by the appellants
against the respondent with the Judicial Service Commission (the JSC) on 30 May
2008. The respondent laid a counter-complaint against the appellants on 10 June.
While these matters were pending (and they still are) the respondent launched the
subject application for an order declaring, in essence, that the CC had violated
certain of his constitutional rights by laying the complaint and by issuing a media
release stating that the complaint had been laid.

[7] The backdrop against which this case arose no doubt raises matters of public
importance wherever the truth on those matters lies.  But it needs to be said at the
outset that those matters lie for examination and consideration in another forum,

namely the JSC, and they are only peripherally relevant to this case.  This appeal is
confined instead to two narrow questions of law relating to alleged violations of the
Constitution.  The first is whether the appellants, as judges of the CC, were obliged
in law to afford the respondent, because he is a judge, a hearing prior to laying the
complaint against him before the JSC.  And the second is whether, having lodged
the complaint, they were obliged in law to keep that fact confidential.  The
circumstances in which those two questions arise appear later in this judgment. This
judgment accordingly is not concerned with the merit of of the complaints to the JSC.

[8] Two of the respondents in the court below are no longer parties to the
litigation. The one is the CC as an institution. The thrust of the respondent’s
substantive application was for an order declaring that the appellants had acted
institutionally (‘as a Court’) and ‘not merely as an assortment of individual judges’
and, in that capacity, had violated his rights. The high court found that the appellants
had not acted as an institution but as a group of persons who were coincidentally
judges and that the respondent’s application was in that regard misconceived. As a
result the court refused to make an order implicating the CC itself and dismissed the
application pro tanto.

[9] The other party in the high court that does not feature in this appeal is the
JSC. The relief sought against the JSC was for a temporary interdict, which became
moot, and the JSC has no further legal interest in the appeal.

THE SEQUENCE OF EVENTS
[10] During March 2008, the CC heard the Thint/Zuma appeals from this court.
They were of public interest and importance since they concerned the prosecution of
a high-ranking politician, Mr Jacob Zuma, on a number of counts. One of the issues
related to legal privilege. The CC reserved judgment. It was ultimately delivered after
the events that feature in this judgment and was reported as Thint (Pty) Ltd v
National Director of Public Prosecutions and Others; Zuma and Another v National
Director of Public Prosecutions and Others 2008 (2) SACR 421 (CC); 2009 (1) SA 1
(CC).

[11] Towards the end of that month the respondent visited Jafta AJ who concluded
that the respondent had attempted to influence him to find in favour of Mr Zuma.
Knowing that the respondent intended to visit Nkabinde J, he warned her of the
possibility that the respondent might repeat his attempt.

[12] The anticipated visit to Nkabinde J took place on 25 April, and she, too,
concluded that the respondent had sought to influence her. At the beginning of May
and soon after the court term began Nkabinde J made a report to another appellant
and through her the matter was taken up with other members of the court. They met
in the absence of two appellants, discussed the subject, and eventually agreed to
lodge a complaint of judicial misconduct against the respondent with the JSC based
on the information provided by the two Justices. This was done on 30 May.

[13] The gravamen of the complaint was in these terms:
‘A complaint that the Judge President of the Cape High Court, Judge John Hlophe,
has approached some of the judges of the Constitutional Court in an improper
attempt to influence this Court's pending judgment in one or more cases is hereby
submitted by the judges of this Court to the Judicial Service Commission, as the
constitutionally appointed body to deal with complaints of judicial misconduct.’
The document identified the case involved and stressed that there was no
suggestion that any litigant was aware of or had instigated the respondent’s action. It
contained further statements about the seriousness of the conduct; the democratic
values contained in s 1 of the Constitution; the independence of the judiciary and the
prohibition in s 165 of interference with courts; the judicial oath; that attempts to
influence a court violates the Constitution and threatens the administration of justice;
and that the CC and other courts would not yield to or tolerate attempts to
undermine their independence.
[14] A media release in virtually identical terms soon followed, which was sent
automatically and electronically to all subscribers to the CC’s information system.
[15] It should be noted at this early stage that (a) the respondent was not apprised
of the allegations or their source; (b) he was not asked for his version or comments;

(c) he received no effective prior notice of the intention to lodge the complaint; and
(d) he was not told of the intention to issue a media statement. The public, too, was
not given any detail and was left with nothing more than the knowledge that a
complaint with serious implications had been lodged.
[16] The JSC held an urgent meeting on 6 June to discuss the matter but due to
the lack of information it put the appellants on terms to flesh out the complaint. The
respondent, as mentioned, launched his counter-offensive on 10 June, charging the
appellants with violating his rights by releasing a public statement about his alleged
improper conduct before filing a proper (factual) complaint with the JSC. This, he
said, violated his constitutional rights – the same rights implicated in the application
before the high court and to which we shall revert.

[17] The two Justices responded to the request of the JSC by stating that they had
not lodged a complaint; that they did not intend to do so; and that they were not
willing to make statements about the matter. However, the affidavit of the Chief
Justice, which they in turn confirmed under oath, stated that the two Justices always
considered themselves to have been part of a collective complaint on 30 May and
not as individual complainants. They soon afterwards indirectly confirmed their
accounts of what had occurred by agreeing that their version as related by the Chief
Justice was correct.
[18] In reaction to press reports the attorneys for Mr Zuma wrote a letter to the
Chief Justice expressing concern about the matter and on 23 June he issued a
practice direction in the Thint/Zuma case drawing the attention of the parties to the
fact that a complaint had been lodged; informing them that the submissions filed
were available from the JSC; and inviting the parties to make any consequent
submissions. Nothing much eventuated.
[19] On 4 July, the first appellant submitted the response to the JSC of the
appellants to the counter-complaint. It, too, set out the allegations of the two Justices
involved, and they again subscribed thereto.

THE APPLICATION TO THE HIGH COURT
[20] The respondent’s case was premised entirely on the allegation that the
appellants had acted together institutionally (what the respondent called acting ‘as a
court’) when they laid the complaint and issued the statement. As he put it in his
founding affidavit, the appellants had done so ‘as the Court and not merely as an
assortment of individual judges’ (underlining in the original) ‘without affording me an
opportunity to reply to the allegations of the judges concerned.’ He added:
‘The question that arises is of a purely legal nature and has to do with whether or not
it was lawful for the judges of the Constitutional Court, acting as a Court, to cause
untested allegations of gross misconduct against me to be published in the media
only on the basis of ex parte representations made to them by some of the judges of
the Court, who had already indicated that they do not wish to complain against me.’
[21] The affidavits say more: The respondent was aggrieved by the manner in
which the appellants treated the complaint against him. He felt that the appellants
had violated the institution of the judiciary and undermined the judicial office,
particularly his. He pointed out that the two Justices had not given their version to all
their colleagues; that their version was never put in their own terms, and that they
appear to have been unwilling complainants and witnesses. The complaint and the
press release were in the name of all the CC judges – also those who had no
personal knowledge of the matter – and this, he said, per se condemned him in the
eyes of members of the public and the profession. In the result an ‘institutional’ bias
had developed that made it unlikely that an unbiased bench of judges or academics
could be constituted to hear his case.
THE FUNCTIONS OF THE JSC
[22] Under s 177 of the Constitution matters relating to gross misconduct of judges
must be dealt with by the JSC. If the JSC makes a finding of gross misconduct and
the National Assembly by a two-thirds majority calls for the removal from office of the
judge concerned, the President must comply. That means that once a complaint of
that kind has been laid against a judge the JSC must conduct the necessary inquiry
and come to a finding.

[23] The JSC is under the Constitution the forum for deciding whether or not a
judge is guilty of gross misconduct. Such a conclusion presupposes a finding that
the judge committed the conduct complained of, which may involve factual or legal
findings. The JSC may find that the complaint is without merit and summarily dismiss
it. If it has merit, two value judgments follow: did the conduct amount to misconduct
and, if so, was it gross? If it finds that the judge was guilty of misconduct which was
not ‘gross’ that ends the matter. If, however, it finds that the misconduct was gross,
impeachment proceedings follow.
[24] The JSC has procedural rules for dealing with complaints. These are
exhaustive and there is no suggestion that they do not afford the right to a fair
hearing to the judge. The procedure begins with the receipt of a complaint ‘from any
source’ and, although it may require the complaint to be on oath, the JSC is entitled
to act on any complaint, whether on oath, in writing or oral. The rules provide that
the JSC may permit the media and the public, subject to such restrictions as may be
considered appropriate, ‘to attend any enquiry unless good cause is shown for their
exclusion’.
[25] The respondent’s complaint against the appellants before the JSC, as
mentioned before, is repeated in the notice of motion and founding affidavit: the
appellants violated his constitutional rights to dignity, privacy, equality and so forth.
He made it clear that the object of the application was to obtain a finding that the
entire process before the JSC was tainted and that his only remedy was a dismissal
of the complaint. He said that if the court were to find that the CC had unreasonably
and unjustifiably violated his rights under the Bill of Rights or that the CC had
abandoned its judicial functions ‘then that will be the end of the complaint against
me’. In reply he pointed out that a process vitiated by illegality cannot be cured by
‘scrupulous attention to considerations of legality at a hearing on the merits’ and that
he was not prepared to subject himself to a process which he believed was vitiated
by illegality and unconstitutionality.
[26] The appellants submitted that the high court had usurped the constitutionally
imposed function of the JSC to decide the issue and had thereby failed to have

regard to the separation of powers inherent in the Constitution. In the light of the way
the case unfolded it is unnecessary to consider this argument.
DECLARATORY ORDERS
[27] In terms of s 38(a) of the Constitution any person acting in his or her interest
has the right to approach a competent court on the ground that a fundamental right
has been infringed, and the court may grant appropriate relief, including a
declaration of rights.
[28] The jurisdiction of a high court to grant a declaration of rights is derived from s
19(1)(a)(ii) of the Supreme Court Act. The court may, at the instance of any
interested person, enquire into and declare any existing, future or contingent right or
obligation, notwithstanding that the applicant cannot claim any relief consequential
upon such determination. This involves a two-stage enquiry: First, the court must be
satisfied that the applicant is a person interested in an ‘existing, future or contingent
right or obligation’, and then, if satisfied, it must decide whether the case is a proper
one for the exercise of its discretion (Durban City Council v Association of Building
Societies 1942 AD 27 at 32).
[29] Marais J and Gildenhuys J devoted some time to the question of that
discretion and held that they would not have exercised it in favour of the respondent
because the matter was one for the JSC. The majority found otherwise but, once
again, in the light of the conclusions we have reached hereinafter on other aspects
of the case, the question of discretion does not arise.
[30] The respondent sought to persuade the high court to issue a declaration of
invalidity under s 172(1)(a) of the Constitution, which provides that when deciding a
constitutional matter a court must declare that ‘any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its inconsistency’. The
court held that the provision did not apply to the case and expressly declined to
declare the complaint lodged against the respondent invalid (at para 108). Since
there is no cross-appeal that issue is not before us for reconsideration (Goodrich v
Botha 1954 (2) SA 540 (A)).
THE ORDER

[31] As we indicated earlier, the foundation of the respondent’s case was that the
appellants had acted institutionally (‘as a court’). It is abundantly clear that they did
not do so, as the high court correctly found. That should have been the end of the
matter. However the court proceeded to examine whether on any basis established
by the facts the appellants violated the constitutional rights of the respondent in
lodging the complaint and publishing the media statement. The court did so on what
it considered to have been a concession of the appellants that the court was at large
to consider the declaratory prayers on the basis that the appellants had acted other
than institutionally. The appellants’ counsel denied that such a concession was
made but stated, quite correctly, that it was in any event a matter of law whether
there was a proper basis for the relief.

[32] Having found that the appellants had not acted institutionally the high court
dealt with the prayers as if they did not contain that qualification. The court held that
the Constitution had not been violated (prayer 1); that the respondent’s right to
privacy (prayer 4) and to access to courts (prayer 7) had not been infringed; and that
the lodging of a complaint with the JSC had not been wrongful (prayer 8). In the
absence of a cross-appeal the dismissal of those prayers does not require further
consideration.
[33] The first three declaratory orders that were issued concerned the publication
of the complaint which was, in general terms, declared to have been ‘unlawful’ (para
1.1); to have violated the respondent’s constitutional ‘right to dignity’ (para 1.2); and
to have violated his (presumably constitutional) right to a hearing (para 1.3).  The
fourth dealt with the lodging of the complaint, which was declared to have violated
his constitutional right to equality (para 1.4). All the declarations were premised on
the fact that the complaint was laid and the media release issued ‘on the basis of ex
parte representations’ of the two Justices and additionally, in the case of para 1.1,
on their ‘untested allegations’. As the high court said, ‘all these violations emanate
from the applicant not being accorded the right to a hearing in relation to the
publication and the laying of the complaint.’
[34] The finding that the appellants had not acted institutionally meant ineluctably
that the respondent’s cause of action fell away. The duty to hear a person was at

common law always limited to judicial or some administrative organs; and a person
acting in a private capacity has never had such a duty. The Constitution is not
different. The audi principle can only be sourced in either s 33 or s 34 of the Bill of
Rights: the former deals with just administrative action and the latter with a fair public
hearing before courts. Since the appellants did not ‘act as a court’ the fair trial
provision did not arise and since they did not act as an administrative body the
administrative justice provision did not apply either.
THE RATIO OF THE HIGH COURT
[35] The reasoning of the high court is difficult to encapsulate neatly especially in
the light of what would appear to be some inconsistencies and conflicting findings. It
would, however, be fair to say that the court reasoned along these lines:
(a)
A distinction must be made between the ‘trigger’ stage’, ie, the stage
leading up to the laying of a complaint and the ‘examination’ stage, ie, the
stage of the proceedings before the body charged with the investigation of
the complaint (in this case the JSC). (We derive the term ’trigger’ stage
from a dictum by Conteh CJ in Meerabux v. The Attorney General of
Belize (Belize Supreme Court at www.belizelaw.org) which at a later stage
came before the Privy Council in Meerabux v The Attorney General of
Belize (Belize) [2005] UKPC 12, [2005] 2 AC 513).
(b)
To impose an obligation on a complainant to afford the accused judge an
opportunity to be heard before lodging a complaint would ‘stretch the
requirements of procedural fairness a bit too far’ (at para 24).
(c)
It quoted with apparent approval a statement by Professor Martin L
Friedland (A place apart: Judicial independence and accountability in
Canada (1995) p 134) that although it would be very unfair for a body such
as the JSC itself to publicize complaints that have not gone on to a
hearing, ‘one cannot prevent a complainant from going public.’
(d)
In the light of this the two Justices involved were not obliged to give the
respondent a hearing because they could rely on their personal
knowledge.

(e)
The appellants ‘admittedly had a right and a duty to lodge the complaint’
with the JSC ‘once they received information about the events and they
considered that a breach of judicial conduct had taken place’ (at para 48).
(f)
However, since the integrity of the judiciary resides in each and every
member of the judiciary, the complaint procedure must assume the
integrity and innocence of the judge, even in the face of a complaint, until
the guilt of the judge has been proven following a fair procedure and
process (at para 22). For this the court (at paras 69 and 72) relied on
Rees v Crane [1994] 2 AC 173 (PC).
(g)
The distinction between the ‘trigger’ and examination stages falls away if
the complaint, at its early stages and prior to it being lodged, is conveyed
to a senior person who did not observe the alleged misconduct.
(h)
Under those circumstances the rules of natural justice require that the
judge accused should be afforded an opportunity to be heard when such
senior person considers lodging such complaint (at para 76).
(i)
The publication of the fact of the complaint was unfair and led to a
violation of the respondent’s constitutional rights because the underlying
facts had not been established; the witnesses were unwilling witnesses
and had not conveyed their version to all the appellants personally; they
had refused to provide a written statement and at best the complaint was
based on hearsay; this should have made the other appellants alive to the
fact that there was possibly another version to the same story; the
complaint and the press release did not contain any detail, which made it
impossible for the respondent to deal with the allegations and refute them
immediately (at para 52 and 79); and the appellants acted with undue
haste (at para 48).
[36] The essential reasoning that led to the making of the orders seems to us to
be contained in the assertions that we have paraphrased in (g) and (h) above.  We
regret that we cannot agree with those assertions for the reasons that are dealt with
more fully below. In particular, it is not readily apparent to us on what legal grounds
they were founded.  The high court’s reliance on Rees v Crane (supra) to disregard
the distinction between the ‘trigger’ and examination stages was not justified. That
case was not concerned with the ‘trigger’ stage but with an initial investigation after

the complaint had been laid by the Judicial and Legal Service Commission that was
tasked with advising the President to appoint a tribunal to investigate and report to
parliament on the judge’s alleged misconduct. The case did not deal with the rights
of the judge before the complaint was laid with the Commission in the first instance.

[37] Counsel for the appellants challenged the conclusions of the high court on
various grounds that need no elaboration but they ultimately came down to
contesting that the appellants were obliged in law to afford the respondent a hearing
before they laid the complaint.  The difficulty faced by the appellant’s counsel,
however, was the difficulty inherent in establishing a negative, particularly when, as
here, the case has mutated over time.  We think it is convenient in those
circumstances to identify the issues by turning first to the case for the respondent as
it came to be presented before us.

[38] But first a matter that calls for comment.  In the course of its judgment the
court below made certain factual findings that reflected adversely upon the
appellants.  We were asked by their counsel to draw attention to the fact that these
were application proceedings in which a court is not called upon to make factual
findings (except in exceptional cases) and ought to have been dealt with it as such.
The undesirability of resolving issues of fact on affidavit has often been remarked
upon  and bears no repetition (National Director of Public Prosecutions v Zuma
[2009] ZASCA 1 at para 26-27).  We do not think we ought to delve into those
matters save to say that to the extent that factual findings were made contrary to
those ordinary principles we do not endorse those findings.

THE RIGHT TO BE HEARD

[39] It has been difficult to pin down precisely where the rights that are asserted by
the respondent are said to be sourced.  Although reliance was placed upon the
Constitution that reliance was at times expressed in broad and unspecific terms.  A
court cannot overlook what was said by Kentridge AJ in the earliest case that came
before the CC, namely that ‘it cannot be too strongly stressed that the Constitution
does not mean whatever we choose it to mean’ (S v Zuma 1995 (2) SA 642 (CC) at
para 17).

[40] It nonetheless became clear early in argument that, whatever the source of
the alleged right might be, the respondent does not assert a right on the part of a
judge to be heard by complainants generally before they lay complaints before the
JSC, and that is undoubtedly correct (Kaunda v President of the RSA (2)
2005 (4) SA 235 (CC) at para 83-84; National Director of Public Prosecutions v
Zuma [2009] ZASCA 1 at para 35-36; Wiseman v Borneman [1971] AC 297 (HL) at
308E-F; Brooks v DPP of Jamaica [1994] 2 All ER 231 (PC) at 239g-j). While a
judge is obviously entitled to be heard in the course of the investigation of a
complaint (as appears from the various cases and protocols referred to by the high
court and referred to in the heads of argument) that is not what we are concerned
with in this appeal.  We are concerned instead with the act that initiates such an
enquiry (the ‘trigger’), which is the decision to lay a complaint. In that respect there is
no authority to which we were referred or of which we are aware – whether in
decided cases or in judicial protocols anywhere in the world – that obliges a
complainant to invite a judge to be heard before laying the complaint.  Indeed, the
authorities all say the opposite (Meyer v Law Society, Transvaal 1978 (2) SA 209 (T)
at 214F-H; Meyer v Prokureursorde van Transvaal 1979 (1) SA 849 (T) at 855G-
856E; Moran v Lloyd’s (a statutory body) [1981] 1 Lloyd’s Reports 423 (CA) at 427)
and a rule to that effect would be absurd, because it would altogether undermine the
process of investigating complaints.

[41] The respondent confined himself instead to asserting a right to be heard
when the complainant is a judge. The distinction that was drawn between
complainants generally, on the one hand, and a complaining judge on the other
hand, was said to lie in the oath of office taken by a judge and in s 165 of the
Constitution, though as the argument progressed that was developed further to
include the more general duty that is cast upon judges to uphold the dignity of the
judicial institution. We think a fair summary of the argument in that regard was that
judges are obliged at all times, by the nature of the office that they hold, to act
judicially when deciding matters that relate to that office, which includes an
obligation to observe the rules of natural justice when making such decisions.

[42] There is considerable merit in the submission that a judge who is minded to
lay a complaint against a colleague has special duties that are not shared by lay
complainants, for there is an overarching duty upon judges, in whatever they do, to
preserve the dignity of the judicial institution.  Indeed, the Constitution itself
commands all organs of state, which include the judiciary, to ‘assist and protect the
independence, impartiality, dignity, accessibility, and effectiveness of the judiciary’.
The duty that is cast upon judges no doubt calls upon them to act with due care and
circumspection before exposing the judicial institution, and those who hold office in
the institution, to loss of public confidence through allegations of misconduct, as
submitted by the respondent’s counsel. That might indeed in some cases call for  an
invitation to be extended to the judge concerned to offer an explanation for the
alleged misconduct before a complaint is laid.  Whether that will be so in a particular
case will necessarily be bound up with the particular circumstances in which the
decision comes to be made, for there are peculiar complexities that are capable of
arising if such an invitation were to be made.  But we are not called upon to consider
whether that was called for in this case, in which we are not adjudicating ethical
questions but questions of law. And it is there that the submission on behalf of the
respondents breaks down fatally on two related grounds.

[43] The first is that those duties are not imposed upon a judge for the protection
of the personal interests of other judges but for the protection of the institution in the
interests of the public at large. And in this case the respondent does not purport to
be asserting the interest of the public in the protection of the judicial institution, which
he would have had no proper grounds for doing, but is asserting instead the
protection of his personal interests. The court below seems to us to have blurred that
distinction, and in that respect we think it erred, when it said in its judgment that the
right that he sought to assert was a right that ‘is asserted in favour of the applicant
as a member of the judiciary’.

[44] But equally fatal to the respondent’s case on that score is that the duties we
have referred to are not sourced in rules of law that are enforceable in the courts.
They are sourced in ethical duties attaching to judicial office that are enforceable
ultimately only by the sanction of removal from office.

[45] It was no doubt that consideration that compelled the respondent at the outset
to attempt to bridge the chasm between ethical principle and legal rule by founding
his case upon the proposition that in making their decision the appellants were
acting institutionally (‘as a court’)  in the performance of the judicial function.  For
there is no doubt that in the performance of the judicial function, by which we mean
the adjudication of rights and obligations, judges are bound to observe and apply the
substantive rules of law that generally confer a right to be heard upon persons
whose rights will be affected by a judicial decision.

[46] So far as the respondent’s counsel relied upon the  oath of office, and on s
165 of the Constitution, to distinguish judge complainants from other complainants,
the submission simply takes us back to the proposition upon which the respondent
founded his claim in the first place, namely, that the appellants were acting
institutionally when they laid the complaint. The oath of office, and s 165, are
concerned with the performance of judicial functions in the exercise of judicial
authority. The insurmountable barrier that is encountered by counsel’s submission,
as rightly found by the high court, is that in making their decision the appellants were
not performing a judicial function (or as the respondent would have it, acting ‘as a
court’).

[47] It was no doubt in recognition of the insurmountability of that barrier that the
respondent’s lead counsel found himself compelled to abandon that argument and
concede that the order made by the high court in paragraph 1.4 could not be
sustained.   And while a valiant attempt was made by one of his juniors, who
presented part of the respondent’s case, to later resuscitate the argument, contrary
to the wiser appreciation by his leader of the futility of pursuing it, we have no doubt
that the concession was inevitable on a proper analysis and was rightly and properly
made.

THE MEDIA RELEASE

[48] That leaves the question whether it was unlawful for the appellants to publish
(by way of the media release) the fact that the complaint had been made.   As
mentioned, the orders that were made by the high court in that regard were all

premised on its finding that the appellants acted unlawfully in failing to afford the
respondent an opportunity to be heard before making the complaint.  When seen in
the light of the reasoning of the court, in which the laying of the complaint and the
publication of the allegations were intertwined, we think it is clear that the court did
not consider, and it was not called upon to do so in view of its findings, the question
that is now before us, which is whether the publication was unlawful notwithstanding
that it was lawful to have laid the complaint.

[49] Much of the argument of the respondent’s junior counsel, who presented that
part of his case, was founded upon the supposition that the appellants were obliged
to allow the respondent an opportunity to be heard, on much the same basis that we
dealt with earlier, and in view of our findings on that issue they do not serve to take
the matter further. He also sought to persuade us that the publication of the
allegations was unlawful because its effect was to reflect adversely upon the judicial
institution notwithstanding that it was lawful to have laid the complaint. But once
more one needs reminding that in making his claim the respondent did not purport to
be asserting the broader interests of maintaining the dignity of the institution but to
assert his personal interests.  In any event it was not the case of the respondent that
the publication of the allegations, in itself, violated his rights.  His case was that it
violated his rights because he had not been permitted an opportunity to refute them.

[50] Once having found the appellants did not act unlawfully in laying the
complaint we can see no basis for finding that they were obliged to keep that secret
for the reasons dealt with more fully below.  On the contrary there is much to be said
for the contrary proposition (bearing in mind the circumstances in which it occurred)
that the constitutional imperatives of transparency obliged them to make the fact
known.  The appellants said in this regard:

‘In the circumstances where the independence of the Constitutional Court had been
threatened and the integrity of the administration of justice in South Africa generally,
it was considered imperative and appropriate that this be publicly disclosed. Should
the facts have emerged at a later stage there would have been a serious risk that the
litigants involved in the relevant cases and the general public would have entertained
misgivings about the outcome and the manner in which the decisions were reached.

It was especially important that the litigants and the general public were informed of
the attempt and that the Constitutional Court had not succumbed to it.’

[51] So far as counsel sought to rely upon the constitutional protection of the
respondent’s right to dignity he was constrained to confine that aspect of his dignity
that was impaired to the personality rights that attach to his reputation but in that
respect counsel moved onto slippery ground.  For it is well established in our law,
and not in conflict with the Constitution, that the prima facie wrongful violation of the
right to dignity may be justified (Khumalo v Holomisa 2002 (5) SA 401 (CC) at paras
29-34). Justification, as Gildenhuys J pointed out (at para 51), can be raised validly if
the statement was true and for the public benefit; constituted fair comment; or was
made on a privileged occasion. These are all specific applications of the broader
principle that conduct, which is reasonable, having regard to all the circumstances of
the case, is not wrongful (Hardaker v Phillips 2005 (4) SA 515 (SCA) at para 15;
Wentzel v SA Yster en Staalbedryfsvereniging 1967 (3) SA 91 (T) at 98).

[52] An allegation that a judge is guilty of judicial misconduct by having sought to
influence another judge is defamatory and violates that judge’s dignity. The media
release contained at least such an innuendo and was therefore prima facie unlawful.
To consider whether the publication was in fact unlawful on that score would call for
us first to decide whether the factual averments made by the appellants (following
the standard approach that is adopted in motion proceedings – Delta Motor
Corporation (Pty) Ltd v van der Merwe 2004 (6) SA 185, [2004] 4 All SA 365 (SCA))
establish the truth of the innuendo. (The appellants went further, and submitted that
on the respondent’s own version the imputation or innuendo was true.) Counsel for
the respondent wisely declined to invite us to embark on that enquiry.  Instead he fell
back on the bald assertion that it is always unlawful for a judge to allege in public
that another judge stands accused of serious misconduct and can never be justified,
even if the allegation is true and the publication is for the public benefit.

[53] The basis of the submission appears to have been that it can never be for the
public benefit to know that a judge stands accused of gross judicial misconduct,
especially if by another judge. There are indications that the high court agreed. It
said the following (at para 49):

‘In deciding to go public at that initial stage of the complaint the respondents had to
act in a manner that ensured a delicate balance between the right of the public to
know and the inevitable result that publication itself may result in the corrosion of
public confidence in the judiciary. The public right to know had to be balanced with
the way that knowledge and information is purveyed. . . . The applicant was dealt
with unfairly and his rights were violated by the failure to strike a balance between
the right of the public to know and the need to maintain public confidence in the
judiciary.’

The court also quoted the following passage from the Belize judgment (referred to
above) in respect of the news that a judge of the Supreme Court was to appear
before a body for the purposes of investigation (at para 50):

‘But the public weal itself will be damaged if the news is not handled with care and
circumspection; for it may inevitably result in the corrosion of public confidence in the
judiciary itself, with deleterious effects on the administration of justice as a whole.’

[54] The fallacy of the finding that the appellants had failed to strike a balance
between the right of the public to know and the need to maintain public confidence in
the judiciary is that the court would seem to have considered the truth or untruth of
the defamatory allegation to be irrelevant. Disclosure of an allegation of gross
misconduct against a judge may in certain circumstances not be for the public
benefit but that could hardly be the case if the allegation is true. If the respondent in
fact approached the two Justices in an attempt to influence their judgment it would
have been to the public benefit that that fact be made known. The fact that the
respondent is a judge does not give him special rights or special protection. Judges
are ordinary citizens. What applies to others applies to them (Pharmaceutical
Society of South Africa v Minister of Health; New Clicks South Africa (Pty) Limited v
Tshabalala-Msimang NO 2005 (3) SA 238 (SCA) at para 39). They, too, like
government, pressure groups, or other individuals, ‘may not interfere in fact, or attempt
to interfere, with the way in which a Judge conducts his or her case and makes his or
her decision’ (The Queen in Right of Canada v Beauregard (1986) 30 DLR (4th) 481
(SCC) quoted with approval in De Lange v Smuts NO 1998 (3) SA 785 (CC) at para

70).  The Belize judgment, it may be added, was not concerned with the issue
whether the publication of a complaint against a judge was improper of wrongful. It
also did not suggest that it was – only that publication must be handled with care
and circumspection.

[55] It will always be distressing for a judge to learn in the media that he or she
has been accused of misconduct but that seems to us to be an inevitable hazard of
holding public office. The remedy that is available to a judge who finds that he or she
is in that position is to insist that the body charged with investigating such a
complaint does so with expedition so as to clear his or her name.  Nor should it be
thought that such accusations may be made with impunity: a judge, like any member
of the public, is entitled to the consolation of damages for defamation if the
publication of the statement cannot be justified (Argus Printing and Publishing
Company Ltd v Esselen’s Estate 1994 (2) SA 1 (A)). But we do not think that his or
her remedy lies in stifling the fact that a complaint has been made (Moran v Lloyd’s
(a statutory body) [1981] 1 Lloyd’s Reports 423 (CA) at 427).

[56] For those reasons we conclude that the court below erred by making the
declaratory orders. The appeal must be upheld and the order of the court below
replaced with an order dismissing the application. Costs were not in issue. It is
accordingly ordered as follows:
(a)
The appeal is upheld.
(b)
The order of the court below is replaced by an order dismissing the

application.

On behalf of: HARMS DP, STREICHER, MTHIYANE, NUGENT, CLOETE,
PONNAN, MLAMBO, SNYDERS AND MHLANTLA JJA

_____________________
L T C HARMS
DEPUTY PRESIDENT

For Appellant:
G J Marcus SC

M Sikhakhane
Instructed by:
State Attorney

Johannesburg

State Attorney

Bloemfontein

For Respondent:
D B Ntsebeza SC

V Ngalwana

T Masuku
Instructed by:
Nongogo, Nuku Inc

Cape Town

E G Cooper & Sons

Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:  The Registrar, Supreme Court of Appeal
Date:  31 MARCH 2009
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

LANGA AND OTHERS v HLOPHE

The Supreme Court of Appeal (SCA) today held that justices of the Constitutional
Court did not act unlawfully when they made a complaint to the Judicial Service
Commission against the Judge President of the Cape High Court without first
affording him an opportunity to be heard. It also held that they did not act unlawfully
by issuing a media statement announcing that they had made the complaint.

The appeal was brought by the justices of the Constitutional Court against
declarations made by the High Court at Johannesburg that they had acted in breach
of the Constitution by laying the complaint and issuing the statement without first
having afforded the Judge President a hearing.

The High Court found that although the justices were not performing judicial
functions as a court when they made their decision they were nonetheless obliged to
afford the Judge President a hearing before they did so. The SCA agreed with the
finding by the High Court that the justices had not made the decision in the

performance of the judicial function of the court. It went on to find that, that being the
case, there was no requirement in law for a hearing to be afforded before they
arrived at their decision to lay a complaint and issue a media statement.

The SCA also held that, once having decided to make the complaint, the judges
were not obliged by law to keep that secret. It held that if the imputation against the
Judge President were true ─ a matter that the SCA was not called upon to decide ─
then it was clearly to the public benefit that that it should be known, and its
publication would not be unlawful.

The SCA pointed out that it will always be distressing for a judge to learn in the
media that he or she has been accused of misconduct. The remedies that were
available to a judge in such a case were to insist upon an expeditious disposal of the
complaint so as to clear his or her name, and, in appropriate cases, an action for
damages for defamation.

The appeal against the declaratory orders made by the High Court was upheld and
the orders were set aside.

---ends---