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.
Does any of the esteemed readers of this Blog have the email address of Judge President John Hlophe? I would really like to send him a copy of the Ethics Guidelines issued by the Chief Justice, the President of the SCA and the Judge Presidents of the various High Courts in South Africa in 2000. Pity one cannot send him a pair of reading glasses via email as well. He obviously needs them.
In today’s Mail & Guardian Hlophe contravenes several of these Guidelines which he is supposed to uphold. First, Hlophe comments on a pending case by stating that he believes Jacob Zuma was innocent despite the fact that an application to declare the dropping of charges against President Zuma is still pending and there is therefore still a possibility that Zuma may be tried.
(This is also quite a shocking statement for a judge to make as he – like the rest of us – had not heard any of the evidence and cannot possibly know whether President Zuma is guilty of any crime or not. He has therefore prejudged a case – a cardinal sin for any judge to make.)
Hlophe then attacks sitting judges and another branch of the judiciary by saying that there was a political conspiracy against him and that this conspiracy was led by Chief Justice Pius Langa and his deputy Dikgang Moseneke. This “conspiracy”, he claims, took shape the moment Hlophe made it clear that his colours were firmly nailed to the Zuma mast. He provides no evidence of this “conspiracy”.
(The scandalous double standard here is, of course, nothing less than we would expect of the Judge President. Hlophe himself has been fighting a long legal battle against the Constitutional Court judges because he claims they denigrated him and infringed his right to dignity by laying a complaint against him and making this public without immediately providing the necessary proof. This suggests that Hlophe does not think others have the same rights he claims are applicable to himself.)
He is also quoted as saying that Langa was serving “other political forces” when he laid a charge against Hlophe. “The old man should have stayed out of it and waited to retire,” he is quoted as saying. He then proceeds to attack the integrity and legitimacy of our highest court, saying that the Constitutional Court justices – which he calls “green ropes; white justice” – had “sold out” and that he would refuse to shake the hand of the Chief Justice because “I am not going to shake a white man’s hand.” (So much for respect of our Constitution which prohibits discrimination on the basis of race!)
These scandalous utterances are in clear contravention of the Ethics Guidelines. Guideline 31, for example, states:
Save in the discharge of judicial office, a judge should refrain from commenting on the merits of any case pending before that judge or in any other court. Unless necessary for or in judicial proceedings, a judge should refrain from public criticism of another judge or branch of the judiciary.
Guideline 32 states:
A judge ought to refrain from action which may be construed as a device to stifle legitimate criticism of that judge or any other judge.
Guideline 33 states:
A judge… should refrain from expressing views in a manner which may undermine the standing and integrity of the judiciary.
Hlophe also punts himself for Chief Justice, saying that appointing Justice Sandile Ngcobo as Chief Justice as a “stop-gap” Chief Justice would give Zuma’s enemies a chance to regroup. “I may get killed – I am not bullet-proof,” he is quoted as saying. This is in violation of Guideline 18 which states:
A judge should in respect of judicial activity refrain from any conduct that may be interpreted as personal advancement.
Of course we all know that Hlophe previously scandalously breached Guidelines 2 and 23 when he took money from Oasis, lied about it and then gave permission for Oasis to sue a fellow judge. Guideline 2 states that: “A judge should always, not only in the discharge of official duties, act honourably and in a manner befitting the judicial office. A judge should therefore never act improperly or disgracefully.” This means, says the guidelines that a judge should behave in a proper manner and should refrain from any act that can affect the trust in or respect for the judiciary.
Guideline 23 states: “A judge should not directly or indirectly accept any gift, advantage or privilege that can reasonably be perceived as being intended to influence the judge in the performance of judicial duties or serve as a reward therefor.”
Maybe somewhere in South Africa there is still someone who honestly believes Judge President Hlophe is a man of integrity and honesty and that his “mere” breach of a litany of ethics guidelines should not disqualify him from holding judicial office. Maybe there is also someone out there who believes PW Botha was a charming misunderstood philanthropist. Maybe, somewhere out there someone still believes Bill Clinton did not have sex with “that woman, Miss Lewinsky”. There is no accounting for the moral failings and blindness of some of our fellow citizens.
I for one would not buy a second hand car from this man. He is a disgrace and an embarrasment to all South Africans and to himself. If he had any pride and respect for himself and others, and any respect for our democracy, he would resign as a judge and take up a political appointment. His skills as an ethically challenged and dishonest man might come in more handy and will be better appreciated in either the legislature or the executive.BACK TO TOP