An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The Mail & Guardian carries an explosive story pointing out that in terms of section 8 of the Prevention and Combating of Corrupt Activities Act 12 of 2004, Judge President John Hlophe may well be found guilty of corruption if charged.
The Act, which was introduced in 2004 to make it easier to prosecute those who bribe and take bribes, explicitly prohibits a judicial officer from accepting – either directly or indirectly – any “gratification” from any other person in order to act in a way that amounts to amongst others:.
is guilty of the offence of corruption.
Section 24 contains a reverse onus provision stating that where the state can further show that despite having taken reasonable steps, it was not able with reasonable certainty to link the giving and/or accepting of the money with the abuse of power etc, that person will still be found guilty unless he or she can present evidence that would raise reasonable doubt about the commission of the offense.
This means that on the available evidence revealed in the defamation case of Judge Siraj Desai, Judge Hlophe (and also Oasis) would be presumed to have committed a crime unless they can show that they never had the intention of bribing and being bribed. This is because we know almost R500 000 in “gratification” was paid to Judge Hlophe, that after first refusing and after much pressure was brought to bear, he gave permission for Oasis to sue Judge Desai.
If charged Judge Hlophe will have to argue that he never thought of the money as a bribe and was not influenced by the payment of large sums to him by Oasis to change his mind. In other words, he will have to argue that he was not bribed but bullied by Oasis to change his mind. “I am not corrupt,” he will have to say, “just weak and easily pushed around.” Not an ideal position for a Judge President to find himself in.
The Mail & Guardian also reports that the JSC will meet next weekend to discuss the case. Surely, even the most die hard supporter of Judge Hlophe must now see the writing on the wall? If he has any good friends they must surely whisper in his ear that he should resign before he is impeached and criminally charged.
But perhaps Judge Hlophe really has convinced himself that this is all a plot against him and that he is being persecuted and thus the victim. I think that this would be a mistake and that the tide had now decisively turned against the Judge President. If he cannot see that, he is not a wise man.
As I have heard via the grapevine that Oasis bosses have said rather nasty things about me when job applicants used me as a reference for a job application at Oasis, I am particularly interested about what will happen with Oasis and its bosses. If Judge Hlophe is impeached and charged, surely the bosses at Oasis should also be charged.
If they are charged the aborted defamation case they launched against Judge Desai will go down in history (along with Oscar Wilde’s defamation case against the Marques of Queensbury) as one of the most monumental blunders.