Delayed judgment triggers power play between courts, turning an already sticky case into a minefield of complexity, writes Carmel Rickard

‘Judge Hlophe knows the stress placed on with keeping up with work. Yet he too is now under the spotlight because of delay’

JUDGE John Hlophe, the Judge President of the High Court in Cape Town, needs an image consultant. For more than two months he delayed giving a decision on whether to allow an appeal in the pharmacy companies’ urgent challenge to government pricing regulations ­ bad enough.

But his handling of the matter created the impression that he has no lack of arrogance.

That might have been why there was stunned silence in the Appeal Court this week when counsel for the minister of Health, Marumo Moerane SC, made what many in the gallery took to be a Freudian slip.

One of the five judges hearing the matter referred to a letter written by Judge Hlophe, which, he said, had been “very uninformative” about when his decision might be ready.

Moerane replied, “Well, we are dealing here with the judge president of the country.”

To which Judge Tom Cloete immediately responded, “Of which country?”

Granted, it was a glitch and we all make mistakes. But by this stage in the whole saga, some people feel that it’s a mistake Judge Hlophe would like us to make more consistently.

Every time the Judicial Service Commission interviews candidates for the Bench, commissioners ask about the number of judgments that are still outstanding. The answer tells the commission how well a candidate is coping with the job.

Judge Hlophe is often part of the interviewing panel and knows the stress placed on keeping up with work.

Yet now he too is under the spotlight as a result of delays.

The problem is not that he delayed handing down a judgment at the end of an argued case. In such a matter two months may not be too long to wait depending on the circumstances.

Rather, the complaint is that his delay relates to a ruling on an application for leave to appeal. That makes a great difference.

Such an application is something like a codicil to the main matter in which one side says to the court: “We would like to see whether a higher court agrees with you. May we have a second opinion?”

All the original court really need say is yes or no. Typically, such an application lasts a matter of minutes, the decision is given immediately and once typed takes no more than half a page.

There are other reasons why the delay seems inexplicable. When a judge decides whether to give leave to appeal, the question is simply whether there is a reasonable chance that another court would disagree with the original judgment.

In this case, the matter was heard by three High Court judges. Judge James Yekiso and Judge Hlophe found against the pharmacy companies. Judge Jeanette Traverso said she would have found for the companies.

In other words, here is a clear indication that another court might well disagree with the original decision ­ because another judge has already done so.

Moreover she is a senior judge one whom Judge Hlophe trusts, as he supported her appointment as his deputy judge president.

On what basis, therefore, would it take over two months to consider whether there was a reasonable possibility that another court might come to a different conclusion than that reached by the majority?

Finally, there is the question of speed. Pharmacies have repeatedly said that the matter was of grave importance and so far all parties have treated the matter as urgent.

For these reasons, the two months and a week that went by before Judge Hlophe gave his decision cannot be dismissed on the grounds that judgments are commonly handed down after a far longer wait. In addition to the delay, the discourtesy shown is also a matter for concern.

On October 22 lawyers acting for the pharmacies asked when they might expect an indication of a date for judgment to be given. They have never had an acknowledgement, let alone a reply.

On November 17, Judge Louis Harms, appointed to preside over the Appeal Court’s handling of the matter, wrote a courteous letter to Judge Hlophe, explaining on what basis he was contacting him, and asking whether, when the decision was handed down, a copy could be sent to the Appeal Court.

Judge Hlophe’s reply, which questioned whether Judge Harms was senior enough to “consult” with him, was both bad tempered and rude.

But there is more to the dispute than personality issues. During the next few days the Appeal Court judges who heard the matter will be mulling over the important issues involved.

They agreed that to save time and costs, they would hear argument on two issues during the same hearing ­ first, whether in principle, they should entertain the appeal even before Judge Hlophe’s ruling and second, the merits of the appeal itself. Now they are considering their response.

The law stipulates that anyone who wants to go to the Appeal Court must first have asked the initial court for leave to appeal. If that court agrees, then the appeal may go ahead. If the first court refuses, then the Appeal Court can be petitioned directly for permission to appeal.

Given that this is the law, it might look as though the Appeal Court should refuse to hear the pharmacy appeal, at least until Judge Hlophe’s decision is available. But it’s not so simple.

The law assumes that the High Court will either grant or refuse leave to appeal and doesn’t indicate what should happen if the court does neither. Suppose that for some reason, a litigant is permanently unable to get an answer from the first court.

Would this mean that access to the Appeal Court is completely barred? Is the litigant “stymied”, as Judge Harms put it? Surely not, for this would mean someone’s constitutional rights being infringed without any remedy.

In addition, the rules about the leave to appeal procedure are contained in legislation ­ and the Constitution, with its rights and protections, must trump mere statute if the law prevents justice from being done.

As if this weren’t difficult enough to resolve, other problems emerged on the first day of the hearing. Judge Hlophe let it be known by another letter read to the judges at the start of argument, that he would give his judgment two days after the appeal was argued.

How will the Appeal Court deal with his decision ­ whatever it may turn out to say?

And then counsel for the minister of Health told the judges during the hearing that he would not participate in argument on the appeal itself as “his client” did not accept the jurisdiction of the Appeal Court to hear the matter.

He said he would not even give the judges access to the heads of argument prepared for the original hearing of the case.

“We take the question of jurisdiction very seriously,” said Moerane.

One of the judges retorted that “contemptuously” might be the more appropriate word.

So what is happening here? And how will the judges resist what from the outside at least looks like a two-finger challenge from the government and the High Court to the authority of the Appeal Court?

For anybody interested in judicial accountability, and in the power relations between courts, as well as between the judiciary and government, this judgment of the Appeal Court will be one not to miss.

IN THE DOCK: Judge John Hlope is at the centre of a row over judicial accountability

CHASTISED: Judge Louis Harms received a rude reply from Judge John Hlope

LEFT DANGLING: The pharmacy companies’ urgent challenge to government pricing regulations has been complicated by Judge John Hlope’s delayed decision on whether to grant them leave to appeal

With ackowledgement to the Sunday Times.