The JSC and Hlophe: what next?

It is a sad fact that the Judicial Services Amendment Bill – which is intended to provide detailed guidance to the JSC for how to deal with complaints against judges – has been languishing on the desk of that most hard working and competent of Ministers, Brigitte Mabandla. This legislation should long have been passed because the Constitution is not very clear on the how the JSC should deal with complaints against judges. Section 177 of the Constitution merely states that a judge may be removed from office only if:

•   the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and

• the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.

The President must then remove that judge from office.

The rules agreed to by the JSC in the interim do provide for an elaborate system to screen out frivolous complaints against judges. When a complaint is made against a judge to the JSC that judge is given an opportunity to respond and the complainant will also be able to respond to the written response by the judge.

The members of the JSC who are not also members of the National Assembly will then decide whether there is a prima facie case against the judge. In appropriate circumstances they can then decide to have a formal hearing where witnesses would be called before a decision is made to recommend the impeachment of a judge to the National Assembly.

There has never been such a formal hearing before the JSC. In the previous case against judge Hlophe a subcommittee of the JSC found that it was not clear enough that he had lied to them when he stated that he received oral permission from the now deceased ex-Minister of Justice Dullah Omar, to receive money from Oasis for unspecified work done for them.

This scandalous decision was reached despite the fact that the present Minister of Justice had told the JSC that there are files kept on all applications of judges to do outside work and that, while Mabandla cannot speak for her predecessor, “the indications are that applications of this nature were submitted in writing and responded to in writing. It is supported by the office records during that period (of the time when Hlophe asserted that he obtained verbal permission from Minister Omar)”.

The letter of the Minister, recently uncovered by Richard Calland in an access to information request, goes on to disclose that the files contain no fewer than 48 applications received from judges and consented to by Omar during his five-year term of office from 1994 to 1999. It is therefore very difficult not to conclude that Judge President Hlophe was lying to the JSC when he claimed to have gotten oral permission from the Minister who had in any event stopped being the minister almost 18 months before the payments from Oasis started. Sadly the members of the JSC chose to give the JP an absurd amount of benefit of the doubt. It was a bit like giving your child the benefit of the doubt when she tells you she saw the tooth fairy last night.

This case is different from the previous complaints against Hlophe because here we have two inconveniently alive judges – both of them hearing cases before the Constitutional Court – who have made extremely serious allegations that the Judge President had tried to influence them in their decision on the Zuma matter. If this is true, it would clearly constitute gross misconduct and must surely lead to a recommendation of impeachment.

The JSC would not have the luxury of fudging the issue as they did the last time around because the judges making the allegations are so inconveniently alive and so inconveniently black and credible. The members of the JSC must either believe the judges of the Constitutional Court (and then they must recommend impeachment) or they must believe Judge Hlophe (and then they should surely impeach the two judges who made these allegations).

One of the problems with the JSC is of course that it is not without its political dynamic. If the Judicial Services Commission Amendment Bill had been passed two years ago when it should have, it would have ensured that only judges sit in any hearing to deal with the question of whether an impeachable offense was committed or not. Although the Bill provides for the recommendation of the panel of judges to be ratified by the JSC as a whole, the original decision to impeach would have been taken out of the immediate political arena.

Unfortunately some of the JSC members are political appointees and although the members of the National Assembly would not take part in deliberations on impeachment (as they would later have to vote on impeachment in the National Assembly), the present structure may still allow for political considerations to play a role in making decisions about impeachment.

But for the reasons set out above, this time it seems that even a politicised JSC will not be able to shirk its responsibility and that the Judge President will have to throw in the towel at some point. Either that or it would really mean the end of the credibility of our judiciary.

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