Zondi’s ruling said: “Note 11(iv) states that courtesy and collegiality towards colleagues are indispensable attributes of a judge. The respondent’s utterances about his fellow colleague were unfortunate and were not germane to scholarly presentation made for the purpose of advancing the study of law which is an exception recognised by article 11(f).”
Zondi said it would not be appropriate to order an apology, given the complainant was “not a person about whom the statement was made”.
He also said he would not decide Kriegler’s point that Ngalwana’s complaint was made in bad faith or for ulterior motives. Instead, Zondi said he would “assume in [Ngalwana’s] favour, without deciding the point, that his complaint was ... driven by his belief that he would ‘always speak out against what he considers as being unjust or unfair’.”
FUL said Kriegler would not be commenting at this stage but a statement would be issued in due course.
Ngalwana said it was not a moment to celebrate.
“I’m really sad that a ruling of this sort had to be a made about a judge I still respect for his contribution to SA's constitutional jurisprudence. I hope for the sake of the integrity of SA’s legal profession and judiciary in particular, a similar complaint about a judge doesn’t have to be lodged ever again,” he said.
He added that he was surprised that the retraction was to be sent to him and not Hlophe — “the person who deserves the retraction”.