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)
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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