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.
The Cape Times report today (subscription required):
The Judicial Services Commission (JSC) convenes today to deal with the thorny matter of impeachment proceedings brought against Cape Judge President John Hlophe, who is accused of “gross incompetence” by a top city advocate.
Peter Hazell, SC, asked the JSC to investigate a string of accusations against Judge Hlophe last August. At its last meeting, the commission decided to give Judge Hlophe the right to reply before the matter could be finalised.
One of the complaints levelled against Judge Hlophe is that he was in contempt of court because of his public statements that he “couldn’t care less” about the findings of the Supreme Court of Appeal in the case between the health minister and the pharmaceutical companies.
Judge Hlope’s response, unfortunately, is not very encouraging. “With respect,” he said” “I do not think the JSC has criminal jurisdiction over judges.” Which rather misses the point, which is that judges are constitutionally bound not to act in a manner that could be construed as grossly incompetent or as constituting gross misconduct.
I am glad I am not on the JSC and I am sure glad I am not the Chief Justice who will have to try and sort out this mess. It seems like a no-win situation. Judge Hlophe will not be impeached by the JSC because his missteps “only” show stupidity and arrogance on his side. If these were impeachable offences many a judge would have been out of a job. Unfortunately Judge Hlophe’s reputation will be further tarnished by the process and respect for the judiciary will be further compromised.
At the same time, the reactionary lawyers and judges who predicted (and was hoping for) his downfall from the start of his tenure, will be able to point to Judge Hlophe when they moan about the perils of transformation. He has become the worst kind of poster child for transformation because he has misused arguments about racism to help excuse his unwise behaviour.
The best possible outcome would be if Judge Hlophe could be persuaded to step down. Don’t we need a new ambassador in Zimbabwe or Iraq?