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 is reported this afternoon that the Judicial Services Commission has cleared Judge President John Hlophe, of any wrongdoing for receiving payment from the Oasis group of companies for services rendered. The SABC news reports:
In a statement, the commission said there was no evidence to contradict Hlophe’s assertion that he had received oral permission from Dullah Omar, the late minister of justice, to receive a retainer from the company.
This is, to say the least, a perplexing outcome that smells of politics and not of principle. I have a few questions for those members of the JSC who endorsed this strange outcome.
This outcome is deeply unsatisfactory. Some brothers and sisters among us will of course say that my criticism is proof of racism – that I assume all black people are corrupt and that Judge Hlophe is the victim of a conspiracy. If we do not believe his story it is because we do not want to believe black people – ever.
I have considered this possibility but I hope I am motivated not by such base assunptions but by concern for the integrity of the judicial system. A system that was so fatally tainted in the apartheid era and that we are trying so hard to rehabilitate.
I will fess up to racism if, and only if, anyone can provide me with satisfactory answers to the above questions. What is required, really, is for the JSC to present us with ALL the facts: from the date on which Justice Hlophe first received money from Oasis; the basis for this payment; how much was paid; when did it stop? If this information is not provided, a cloud will hkeep on hanging over Justice Hlophe and now also over the JSC.
In the absence of a full explanation by the JSC, it would be hard not to suspect that racial solidarity won out over principle and common sense at the JSC. In my eyes they have shot themselves in the foot big time. Only full disclosure can begin to restore their credibility. Today is a dark day for the judicial system in South Africa.
PS: See also my previous post on Justice Hlophe which seems a bit optimistic now.BACK TO TOP