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.
Interesting to note that Oasis Asset Management company is now punting itself in half page advertisements in the Sunday Times. The company obviously needs to try and repair the damage caused by its aborted defamation case against Judge Siraj Desai.
The case might well go down as one of the most spectacular own goals in the legal history of
Hlophe was first left off the hook by the Judicial Services Commission (JSC) but because of the defamation suit new evidence has now emerged that casts new suspicions on Hlophe, as The Weekender reports:
Among the new documents that members [of the JSC] have been given as a result of the court action that was ultimately withdrawn by Oasis last month, is evidence of the fact that Hlophe was a trustee of Oasis only from November 2000. This raises a number of questions about the permission he claims to have been given to become involved with the company.
According to Hlophe, he was authorised to take the job by former justice minister Dullah Omar. However, Omar had quit as minister at least 18 months before Hlophe took on the position.
On what basis, the commission members will want to know, would Omar have been able to grant permission to a judge to take on what amounts to additional outside employment, at a time when Omar was no longer the justice minister and was therefore unable to give such permission?
This means that if the JSC vigorously pursues this matter, Judge Hlophe may well be impeached, in which case the image of Oasis would also be irrevocably tarnished. Oasis is already reeling from the bad publicity – which is why they dropped the case against Judge Desai. It has clearly realized that going through with the case would have been disastrous.
In another development Carmel Ricard hints in her column in The Weekender that the court files in the case have been removed in an untoward way. When she looked for the files there was an “upliftment note” instead of all the juicy files. She dares not point a finger at Judge Hlophe, or does she? Judge for yourself:
This “upliftment note” says that the file was removed at the end of March. But, as I expected, a phone call to the highly respected firm concerned indicated the file was borrowed when they first became involved, in order to make copies of everything, and it was then returned.
Some court staff told a journalist colleague that the file had been called for by Hlophe himself. But this cannot be so. It would have been improper and Hlophe, as a highly respected judge, would not have done anything unless completely kosher.
Because Hlophe was personally implicated in the case, neither he nor any judge of his division would have heard the case or have had anything to do with it. Instead it was referred to another judge-president to send an “outside” judge to hear the matter. Judge-President Bernard Ngoepe organised that Judge Frans Malan would deal with it; the court file relating to the case was thus under his control and not that of any
judge, least of all the Cape Town Capejudge-president.
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