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.
When the Judicial Services Commission issued a statement in December last year stating that there was no evidence to contradict the claims of Justice John Hlophe that he had received permission from the late Justice Minister Dullah Omar to receive retainers from the Oasis company, some of us suggested that the JSC acted in an unprincipled manner.
So it is difficult to know what to make of the JSC announcement on Friday that the commission would wait for the outcome of a defamation case brought against judge Siraj Desai by investment company Oasis Group Holdings before considering a complaint lodged by Advocate Peter Hazel. This move can, of course, be interpreted as another display of spinelessness by the members of the JSC.
But I suspect the announcement may suggest that the JSC has been stung by criticism against them and may be ready to re-open the Hlophe matter. If evidence emerges in the defamation case that Justice Hlophe had lied, he surely must be done for.
Unfortunately, the whole sorry saga is extremely damaging to the credibility of the judiciary. The fact that there is even a vague suspicion out there that the Judge President of the Cape High Court is economical with the truth and perhaps even corrupt, is a disaster for all of us who believe in the Rule of Law and the power of Courts to do good.
The JSC should have dealt with this matter far more decisively and quickly than it did. But because it is such an unwieldy body and because it is highly politicised, it is perhaps not capable of dealing with complaints where the facts are not yet proven.
That is why there is an urgent need for Parliament to pass the draft legislation providing for disciplinary action against judges. The establishment of a judge-driven complaints process against judges will allow for a far speedier and a more legitimate way of dealing with unhappy situations like the Hlophe matter.
Although the Sunday Independent reports today that some judges are upset about some aspects of the new Bill that would potentially limit retired judges from doing other work, the Bill is mostly sound and I believe with some small amendments it would find support amongst most judges.