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.
Retired Constitutional Court Justice Johan Kriegler launched a blistering attack of Judge President John Hlophe in the Sunday Times yesterday. Money quote.
The unseemly squabble that erupted when Oasis, Judge Hlophe’s secret paymaster, asked him for leave to sue Judge Desai was entirely predictable — and of the Judge President’s own making. It was improper for him ever to have accepted these payments from Oasis; for him then to have dealt with the application to sue compounded the original impropriety. Judge Hlophe could not have been unaware that a judge may not seek to exercise power in a cause in which he or she has an interest. Being on the Oasis payroll, whether as consultant, board member or expert adviser, was self-evidently such an interest and he should not have thought of dealing with the matter, initially or later. He thus not only compounded the original impropriety but manifested a lamentable lack of judgment throughout.
As we all know only too well, numerous other features of the learned Judge President’s tempestuous career at the head of the Cape judiciary have elicited adverse public comment. It is not necessary to refer to them here, save to observe that they reinforce the damning conclusion from the Oasis affair: Judge Hlophe is not a fit and proper person to be a judge. His retention of office constitutes a threat to the dignity and public acceptance of the integrity of the courts. This is indeed tragic, for this highly talented man carried the hopes of all who are passionate about transformation of the judiciary. By his greed he has betrayed us.
This attack shows how untenable Judge Hlophe’s position has become. Any other judge in his position would probably have sued Justice Kriegler for defamation – calling a person not fit and proper to hold judicial office is surely slander of the highest order. But Judge Hlophe dare not sue Justice Kriegler for fear of the allegations against him being proven to be true.
Can he really continue on the bench? If he does not sue Justice Kriegler he has no business ever hearing a case again, because he would have, more or less, admitted that what Justice Kriegler had wrote is true.BACK TO TOP