Western Cape Judge President John Hlophe is demanding R10m from the Constitutional Court and all its judges for damaging his "dignity and reputation".
Hlophe's lawyers sent an unprecedented letter of demand to Chief Justice Pius Langa on September 26 ­ the day Hlophe won a case against the judges of the Constitutional Court in the Johannesburg High Court.

Deputy Judge President of the Johannesburg High Court Phineas Mojapelo found that the judges of the Constitutional Court had infringed Hlophe's rights to dignity and equality and his right to be heard by making a complaint about him to the Judicial Service Commission (JSC) and publishing a media statement on it.

The Constitutional Court judges had complained to the JSC that Hlophe had tried improperly to influence the outcome of cases pending involving African National Congress president Jacob Zuma.

Defamation expert Dario Milo of Webber Wentzel attorneys says the amount of money claimed by Hlophe "is entirely inconsistent with existing precedents in our law of defamation. Courts are reluctant to award more than R100 000 ­ even for the most serious of defamations *1."

Milo says if "the merits favour his case, the most Judge Hlophe would get, based on existing precedents, is R50 000".

The letter of demand, sent to the Constitutional Court by Hlophe's attorney Lister Nuku, says its judges "made untested allegations of gross judicial misconduct against (Hlophe)".

It says their media statement in May was "deliberate, and aimed at injuring (Hlophe's) personality rights, thus forcing him to resign from his position as a judge".

"Without conveying the factual basis for such damaging allegations, it is the only reasonable conclusion that the Constitutional Court judges were deliberately negligent and leveraged on their judicial status to mobilise vicious and vindictive public views against (Hlophe) with the sole aim of forcing him to resign from his position as a judge."

But Milo says if Hlophe does sue, and the matter comes before a court, one of the defences likely to be raised by the Constitutional Court judges will be that what they said about Hlophe was true.

Truth in the public interest is a complete defence against a defamation action.*2

"As the law currently stands, the judges would need to establish that there is substance to their allegations, a fact that the JSC may have ruled on by the time that the defamation case comes to court," Milo says.

The letter of demand makes no reference to Mojapelo's judgment. It might be that it was Hlophe's intention to sue the Constitutional Court judges in any event, whether the Johannesburg High Court found for or against him.

Despite the fact that the high court found that the unfairness to Hlophe came from the judges of the Constitutional Court, and not the court as an institution, Hlophe is seeking damages from "the Constitutional Court and its judges".

However, another possible reason for the omission is to be found in the appeal filed on Friday by the judges of the Constitutional Court against Mojapelo's judgment. The letter was an addendum to the appeal application. In their appeal, the Constitutional Court judges said what was sought by Hlophe in the high court, a declaratory order, was "not an appropriate remedy to support a claim for compensation", which, it said, the letter of demand showed Hlophe intended.

In his minority judgment in the high court, Judge Antonie Gildenhuys, quoting previous judgments, said Hlophe could not use the declaratory orders to "pave the way for a damages claim"*3.

Nuku refused to respond to any questions on the letter of demand, saying he had "been instructed not to speak on that".

Hlophe says in his letter of demand that if the Constitutional Court and its judges refuse or neglect to pay the R10m within 30 days, he will issue summons against them.

Milo says he knows of no reported cases in which a judge has sued other judges for injuring his reputation *4.

With acknowledgements to Franny Rabkin and Business Day.