Quote of the week

As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
24 October 2007

Hlophe to blame for damage to judiciary

Who is to blame for the stress placed on the judiciary and the legal profession by the saga around Cape Judge President John Hlope? The National Association for Democratic Lawyers (Nadel) seems to suggest it is those who had criticised the original decision of the Judicial Services Commission not to pursue the complaint against Judge Hlophe that should bear the brunt of the blame.

According to a press release from Nadel, this comment “had undermined constitutional institutions, in particular the Judicial Service Commission (JSC), called into question the integrity of the chief justice — who presides over the JSC — and polarised the judiciary and legal profession along racial lines”.

In a cogent and well argued article in Business Day this morning, my colleague, Sibonile Khoza, writing with Sibonile Ndlovu, argues that it is the JSC themselves who is really to blame for the mess and that we have a democratic right to criticise them for creating the mess.

The well-known legal principle says “justice must not only be done, but must also be seen to be done”. The JSC’s failure to adhere to this principle is what makes its finding controversial…. There is a significant amount that we do not know, which has allowed all sorts of conclusions to be drawn.

They also argue that those who are calling for Judge Hlophe to resign are missing the point.

Hlophe has been cleared by the JSC. Calling for him to resign is tantamount to calling for an acquitted person to hand himself to prison authorities, simply because certain sectors of the public think he is guilty.

It seems to me that these comments are revealing, not for what they say about Judge Hlophe and his actions, but for what they avoid saying about it. Although I agree with Khoza and Ndlovu that the JSC has handled the matter very badly, the fact remains that in the end the person who in the first place has caused all the tress to the legal profession and the judiciary is Judge Hlophe himself. Surely it is perverse to blame critics of the JSC for the mess as Nadel seems to do.

It is the Judge President whose actions have been partly excused by the JSC, who has caused the mess. If only Judge Hlophe had acted properly – like any judge is supposed to – no damage would have been done.

The JSC has made it clear (see Business Day article here) that its decision not to hold a formal public inquiry into complaints against Cape Judge President John Hlophe did not constitute an exoneration. It meant only that a commission majority held that there was insufficient evidence on which to hear the complaints, the commission said.

In my opinion, the problem with this line of reasoning by the JSC is not necessarily, as Khoza and Ndlovu argues, that members of the public do not know the facts, but exactly that we do know enough about the facts and that these facts all suggest that the Judge President is not fit to sell second hand cars – let alone to act as a Judge President. Moreover, the facts already known to us does not seem to square with the decision taken by the JSC.

We know that when first confronted with the fact that he was receiving money from Oasis, the Judge President told a bare-faced lie and claimed this was a negligible amount for “out of pocket” expenses. Later it turned out to have amounted to almost than R500 000 and that it was for “services rendered”.

We know that the Judge President claimed that he had been given permission to do this work for Oasis by the Justice Minister, Dullah Omar, but that the fund for which he worked was only set up more than a year after the Justice Minister had left office. We therefore know that this excuse is about as believable as anything Schabir Shaik came up with during his fraud and corruption trial.

Finally, we know that while receiving money from Oasis, the Judge President gave permission to them to sue a fellow Judge, thus acting in a completely unethical and inappropriate manner.

What we do not know is why, confronted with all these facts, the JSC still decided not to proceed with a hearing against Judge Hlophe. Did the majority of its members really not think this is serious enough to warrant impeachment or did they feel sorry for the Judge and decided to make an unprincipled decision not to pursue the matter despite the seriousness of the charges?

In any event, it seems the matter is not going to go away. Writing in the Cape Times yesterday, Peter Hazel, the advocate who brought the initial charges against Judge Hlophe, laid down an ultimatum to the Judge President: resign or I will take the decision of the JSC on review.

This will be an unprecedented step. I am not sure that it will be successful because the JSC is a constitutional body and to what extent its decisions can be taken on review will have to be decided by Judge Hlophe’s colleagues in the Constitutional Court. But it will expose the judiciary and the JSC to more agonising scrutiny and will further besmirch what is left of Judge Hlophe’s reputation. It really would be wise for him to resign.

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