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.
It was heartening to read in The Weekender that the Judicial Services Commission (JSC) has finally taken action against a Judge President for receiving a huge benefit unbecoming of a judge.
But before everyone gets excited, it must be noted that the JSC did not taken action against Judge President of the Cape, John Hlophe, for taking more than a million Rand for “out of pocket expenses” from Oasis and then lied about it on several occasions before doing special favours for Oasis. No, it quietly instructed Vuka Tshabalala, Judge-President of the KwaZulu-Natal High Court, to hand back the R6,9m worth of shares in Batho Bonke consortium, given to him by Tokyo Sexwale in the run up to his failed Presidential bid.
Carmel Ricard reports that Judge Tshabalala told her: “I returned the shares. The Judicial Service Commission wrote to me saying that I had to give them back. So I did.”
This is, of course, great news. It means that the members of the JSC actually had the backbone to order a sitting judge to hand back shares that he received from a influential business and political figure because it acknowledged that it was unethical and inappropriate for a judge to receive such a “gift”. Finally, there is an acknowledgment that judges must act ethically and must not put themselves in a position where a conflict of interest could arise.
But it does make one wonder where this leaves the JSC regarding the money given to Judge President Hlophe. Has it ordered him also to hand back the money he received from Oasis and if not, why not?
There seems to be very little difference between the situation the two judges found themselves in. They both inappropriately benefited financially by taking “gifts” or “donations” or “out of pocket” expenses or payment for services (which services?) rendered.
The only difference is that Judge President Tshabalala never denied receiving the shares and never lied about the extent of their value. He has also not been involved in making decisions directly affecting those who gave him the benefit – unlike Judge Hlophe who gave permission to Oasis to sue fellow judge Siraj Desai after he received these
bribes donations – masquerading as out of pocket expenses or directors fees or some such – from Oasis.
Which makes one wonder again about the credibility of the majority of members of the JSC who declined to pursue the impeachment case against Judge Hlophe and – as far as one knows – also declined to order him to pay back the money to Oasis. This seems to suggest that the JSC has not acted consistently in this matter and has double standards as far as judicial ethics is concerned.
This sends a dangerous message to judges and to the public. It suggests that if Judge Tshabalala had played the victim, had stated that those who complained about his gift from Mr Sexwale were all unreconstructed racists out to get him, he would have been allowed to keep his shares. The poor man was, however, far too honest and now he is almost R7 million the poorer for it.
It sends a signal that if one has no scruples and is prepared to lie to cover one’s tracks and is prepared to play the race card for all it is worth, one will not be acted against, but if one acts openly and honestly, the JSC will not hesitate to flex its muscle and take away an unexpected windfall.
What kind of morality is that? At the very least, the JSC should order Judge President Hlophe to hand back all benefits received from Oasis. They should also ask for proof that the money was indeed given back, because given Judge Hlophe’s actions, I personally would not believe the Judge President if he claimed he had given it back and nor would I believe statements from Oasis that they had received the money.
As Ricard points out, it is peculiar that the JSC ordered Judge Tshabalala to hand back the money but never informed the citizens of this country about it via a press release. It suggests that the JSC does not fully appreciate that we live in an open and transparent democracy where every institution created by the Constitution should be prepared to be accountable and open. How can we trust this important institution created by the Constitution to oversee the judiciary, if it acts in secret? By doing this in secret, it suggests that some members of the JSC thinks that they are not accountable to anyone. This is undemocratic and offensive to the principles of transparency and openness that permeates the Constitution.
But perhaps the true reason for this secrecy is exactly because members of the JSC knew all too well that we would compare the way they had treated Justice Tshabalala to the way they had treated his colleague, Judge Hlophe and that we would start asking questions about their integrity and commitment to the Rule of Law. Why tell the public about something that would deeply embarrass your institution and would open you open to scrutiny by the public?
Now the dirty little secret is out and those of us who still think the JSC is constitutionally required to uphold the constitution and the law and not the personal interest of some judges who may be politically connected, will continue to ask questions. Maybe we can start by asking the members of the JSC involved in these decisions to open up their personal finances to public scrutiny.
I am sure they have nothing to hide, that none of them had received any money from Mr Sexwale or Oasis, or sit on the board of any of the relevant companies or are drinking buddies with any of the personalities involved. But how can we know for sure if they act in secret?
So, I would challenge the members of the JSC to come clean to reassure cynics like myself that they exercised this double standard not because they are crooked or corrupt, but merely because they are callous and/or stupid.BACK TO TOP