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)
21 May 2007

Judge President Hlophe should resign

I was intrigued by the full page advert in the Sunday Times in which the Oasis group announced that it was dropping its defamation case against Judge Siraj Desai. They claimed that they were dropping the case because it could take several more years to conclude their constitutional challenge to the rule that the Judge President had to give permission before they could sue another judge.

As the Business Day points out today, the main reason for Oasis’ withdrawal stem from its concession that Hlophe’s consent for it to sue Desai was not properly granted in terms of the High Courts Act. The report then delicately continues:

Another reason for Oasis dropping the case could be the likelihood that evidence would have emerged relating to Hlophe’s receipt of consulting fees. Desai’s legal team intended probing this issue and the background to Hlophe’s ultimately granting his consent to Oasis to sue Desai after twice refusing.

What they really mean is that if Oasis had continued with the defamation case, they would have run the risk of harming their reputation even further. Like Oscar Wilde who disastrously sued the Marques of Queensbury for defamation, only to expose himself and end up in prison, Oasis could easily have exposed themselves to allegations of bribery.

Questions would have been posed during trial that could have created the impression that Oasis had bribed Judge Hlophe to give them permission to sue judge Desai. This would have even further tarnished the image of both Oasis and Judge President Hlophe, so it was in both their interest to drop the case.

The question is now whether the Judicial Services Commission will take action against Judge Hlophe. I am not holding my breath, given the ludicrous decision of the JSC to accept Justice Hlophe’s explanation that he had received permission from the dead Minister Dullah Omar to receive money from Oasis from 2001, when Omar stopped being the Minister of Justice in 1999.

Justice Hlophe – like any other person in South Africa – is of course entitled to be thought innocent until proven guilty, so unless he is convicted of bribery we cannot call him a crook.

But judges – and a Judge President in particular – must be held towards a higher ethical standard. As the Constitutional Court has pointed out a judge should never act in a way that would lead reasonable people to a well founded apprehension of bias on his part. In this case, any reasonable person would feel deeply suspicious about the relationship between Justice Hlophe and Oasis.

Hlophe received around R500 000 from Oasis and then gave them permission to sue Judge Desai. To a reasonable person with a knowledge of how judges ought to behave, this looks like bribery and it smells like bribery – it is just not clear whether it would constitute bribery beyond reasonable doubt in a court of law.

If Judge Hlophe had respect for the judiciary and the office he holds, he would resign forthwith. If the JSC took their job seriously, they should arrange a special sitting to deal with this matter.

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