Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
MEDIA STATEMENT: JUDGE HLOPHE’S LEGAL COSTS
Freedom Under Law (FUL) is surprised that the Minister of Justice has reportedly made known that, irrespective of the outcome, the State – i.e. the South African taxpayer – is to stand good for the legal costs incurred by Judge President MJ Hlophe in the proceedings arising from the complaint against him by the justices of the Constitutional Court (CC) and, presumably, from the associated complaint by FUL.
It is hard to believe that the minister has been correctly reported. Not only would he be contradicting his own earlier public statements in this regard but the statement would mean that the minister has committed the public purse to paying Judge Hlophe’s costs even if he is found guilty of the grave charges still outstanding against him. The charge which the Supreme Court of Appeal ordered the Judicial Service Commission (JSC) to investigate properly is essentially one of attempting to defeat the ends of justice, and FUL’s charge is one of gross misconduct arising from Judge Hlophe’s scandalous public reaction to that charge.
The decision ascribed to the minister is therefore legally and ethically indefensible. There has never been a suggestion that the judge president of the Cape court was acting in the course of his duties when on his own admission he raised with two justices in their offices in Braamfontein the politically sensitive Zuma/Thint cases they were considering at the time.
The minister’s alleged reliance on the constitutional importance of the complaints is equally unsound. No constitutional issue has ever been raised in the two complaints against the judge. The first turns on his credibility, the second on the impropriety of the scandalous allegations about his colleagues to which he resorted in his defence. The constitutionality of the JSC’s (mis)conduct was never in issue in the complaints against the judge and has in any event long since been determined. The fundamental issue has at all times been Judge Hlophe’s fitness for judicial office.
It should also be noted that the judge president’s costs over more than four years were incurred while he, retaining his office and its benefits, vigorously – and thus far successfully – fought to put off the final determination of the truth of his conversation with the two justices. In the circumstances it is unconscionable that such costs are to be borne by the citizenry.
The minister may believe that he has an unfettered discretion to make such costs arrangements as he sees fit. FUL, however, is considering legal steps to test such belief.
In the interim the minister is urged to take the public into his confidence by stating:
when, in what terms and for what reason(s) the decision to provide funding for Judge Hlophe was originally taken
whether such decision was at any stage amended and, if so, when, in what respects and for what reason(s)
how the total sum paid by the State is made up, specifying in respect of each payment the date, amount, payee and services involved.
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