Quote of the week

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.

Plasket AJ
Victoria Park Ratepayers' Association v Greyvenouw CC and others (511/03) [2003] ZAECHC 19 (11 April 2003)
4 December 2006

What now for Judge President Hlophe?

The Judicial Services Commission (JSC) meets later this week when they will probably decide whether to proceed with impeachment against Judge President of the Cape, John Hlophe.

On the face of it the JSC needs to decide two things.

  • First, whether Justice Hlophe gained a benefit from the Oasis group without permission from the Minister of Justice and then lied about it in his subsequent statements to cover his tracks.

  • Second, if this is indeed the case, whether the initial breach and the subsequent dishonesty are so serious that the behaviour constitutes “gross misconduct” in contravention of section 177 of the Constitution.

But of course this being South Africa, there are different forces that are pulling in different directions on this matter.

On the one hand Justice Hlophe is seen as a strong supporter of judicial transformation while some of his accusers over the years have seemed less than enthusiastic about the new South Africa and sometimes suspiciously close to disdainful of black people.

This means that principled progressive members of the JSC will feel torn because they would not want to be seen to take down someone who has been the victim of racism.

On the other hand, it seems as if Justice Hlophe might have acted, at the very least, in an astonishingly unwise manner. If he gained some benefit from Oasis, I think he could still get off with a slap on the wrists. But if he then lied about getting permission from the previous Minister of Justice his position really is untenable.

Some would say, well we have judges on the bench who supported apartheid, so Justice Hlophe’s surely cannot be said to have less credibility than they do. Although some of the old guard judges really are beyond the pale they have not been caught out lying to save their skins. And I never was one to think that it is a good excuse to say that we must be excused bycause they were just as bad during the apartheid years.

Unprincipled progressives (if there is such a thing) on the JSC might want to fudge the matter by claiming there is not sufficient proof of wrongdoing. This would be untenable given the fact that the Minister of Justice herself has said there is no record of permission having been given to Justice Hlophe.

In the peculiar circumstances of this case, Justice Hlophe carries the burden, I think, to provide proof of this permission. Surely a letter must have been written if permission was ever given?

If no proof exists, I cannot see how any principled member of the JSC could vote against a process of impeachment. I personally wish that it does not come to impeachment because it would be terribly sad and would just reinforce all the racial prejudices and stereotypes of the anti-transformation lawyers at the bar.

It’s a bit like the USA’s involvement in Iraq: there are no good options.

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