Both the constructive disagreement intrinsic to science and the adversarial scrutiny necessary to politics disappear in this invocation of science as the ultimate authority – this trick will become familiar in the coming months. An extraordinary emergency requires extraordinary powers; no one disagrees with that. But it is politics, not science, which grants these powers legitimacy. How long will they endure?
Members of the Judicial Services Commission (JSC) who read the founding affidavit of Freedom Under Law (FUL) in their application to set aside the decision of the JSC not to properly investigate the complaint of gross misconduct against Judge President John Hlophe, would be hard pressed not to feel ashamed.
Whatever the legal merits of the case presented by FUL, the affidavit builds a strong case that the JSC’s decision was so absurd, irrational and arbitrary that no reasonable person would have been able to make it. FUL contends that in an effort to avoid a situation where Judge President Hlophe (who has been caught out lying in the past) would have to face cross-examination, it decided – without affording the parties any of the procedural protections prescribed in the JSC’s own rules – that even though a prima facie case existed against Hlophe, the CC judges had not been able to prove during the “preliminary hearing” that Hlophe had unduly tried to influence them.
FUL’s affidavit – although it challenges the unlawfulness of the decision on relatively technical grounds – contains powerful pointers that goes to the substance of the complaint and when one reads it one gets the impression that FUL’s lawyers believe that the JSC should have made a credibility finding against Hlophe. FUL argues as follows in this regard;
In exercising [their] constitutional duty, [the JSC] must apply the law of evidence regarding the resolution of conflicting factual versions. It is well-established that this requires a determination of the witnesses’ credibility, their reliability and probabilities. The JSC cannot abdicate this responisbility because the complianants and those against whom complaints are made are judges. If it were so, the power given to the JSC under section 177 and its rules would become meaningless whenever a judge denies a charge.
FUL points out that the JSC decision failed to consider crucial evidence which shows not only premeditation on the part of Hlophe, but supports a credibility finding in favour of Justice Nkabinde. It lists the following issues as pertinent:
When Hlophe was challenged during his first interdict application to provide answers to the following questions he failed to do so:
Instead Hlophe stated that these questions had to be determined at the JSC hearings. because there were no hearings, Hlophe never had to answer these pertinent questions that fatally undermines his credibility.
FUL seems to have a point. The fact that the JSC chose to believe some aspects of Hlophe’s version of events above that of Nkabinde looks in this context astounding and inexplicable. I think FUL has convinced me that no reasonable person with an open mind could possibly have come to such a decision.BACK TO TOP