Quote of the week

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.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
5 February 2007

Hlophe case "unprecedented"

Robin Palmer, Professor at the University of KwaZulu-Natal says in a report in the Sunday Argus that the Hlophe/Desai case is unprecedented in South Africa’s legal history. A situation where a judge was facing defamation claims and the judge-president could be called to testify and possibly face hostile cross-examination was “highly undesirable”.

Meanwhile Sheila Camerer of the DA called for the Judicial Service Commission to reopen its investigation into Hlophe.

The problem is, of course, that the JSC is hopelessly divided on this matter. The Hansie Cronje effect has come in to play, so some members of the JSC will probably be loyal to Justice Hlope even if he admits that he only gave permission for Justife Desai to be sued because he received money from the Oasis group.

There is an urgent need for the Minister of Justice – or somebody at the Ministery who actually does anything – to finalise the Bill that will set up a system to deal with disciplinary matters against judges. What is required is the establishment of a sub-committee of the JSC, composed at the very least, of a majority of senior judges and chaired by the Chief Justice, to look into allegations of conflicts of interest and corruption against judges.

It would be untenable for such a committee to be controlled by civillians with overt political agendas. The indepenence of the judiciary requires that judges should be in control of their own disciplinary process. But one or two civillians could be added to ensure that the body does not become a toothless club protecting colleagues who should be brought to book.

This sub-committee should deal with judges on the basis of a code of conduct setting out what is required of a judge in terms of ethics and behaviour and should allow for reccommendations that range from suspension and docking of pay to full impeachment.

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