Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
8 December 2006

Unprincipled JSC?

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.

  • On 1 April 2006 Judge Hlophe told Independent newspapers: “I am not on a retainer from Oasis or anybody. I am not so stupid as to receive a retainer from any party.” Hlophe later admitted to receiving money and the SABC report seems to suggest that the JSC has accepted that this was a retainer. Was he just making an April fools joke or was Judge Hlophe lying when he made his initial statement?
  • Was there not perhaps an untenable clash of interest when Judge Hlophe – on a retainer from Oasis – gave permission to the same Oasis to sue fellow Judge Siraj Desai? If so, does this bother the JSC or do they not have any ethical standards?
  • It is reported that Hlophe admiited to receiving money from Oasis from 2000 to 2005. Hlophe claims that Dullah Omar gave permission for this. But Dullah Omar stopped being the Minister of Justice in May 1999. How on earth can the JSC believe that permission was given at such an early stage for payments which only started a year later? Do they believe in the tooth fairy as well?

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.

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