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.
I am going to stick my neck out and predict that Judge President John Hlophe will NOT be appointed to the Constitutional Court. There are, of course, many valid and cogent reasons why Judge President John Hlophe should not be appointed to the Constitutional Court. There are also many valid reasons for believing that independent of these factors Hlophe has no chance of being appointed.
We know that Hlophe is a liar. He claimed to have received only “out of pocket” expenses from Oasis when in fact he had received first R10 000 a month and later R12500 a month from them “for services rendered”. (No one has yet stated what services were indeed rendered for the almost R500 000 Hlophe received, but it looks like Oasis made a very bad investment there.) At the time he lied to the JSC – even after it came to light that he was receiving money from Oasis – stating that the amount was R10 000 a month when it was in fact by then R12500 a month.
As Zackie Achmat has now reminded us, Hlophe is also homophobic and hateful of people living with HIV. (See below.) Given the fact that our Constitution prohibits discrimination on the basis of sexual orientation and has also been interpreted to prohibit discrimination against people living with HIV, this means Hlophe has not internalised the values at the heart of the constitutional enterprise.
We also know that Hlophe has an adventurous and innovative understanding of ethics and of conflicts of interest, one not shared by any lawyer I know, and perhaps not shared by any lawyer not practicing in Uzbekistan or North Korea. Newspaper reports state that at his JSC hearing Hlophe denied that he exposed himself to a conflict of interest when he made the decision to grant Oasis leave to sue a fellow judge despite the fact that he was on the pay role of Oasis.
This is astonishing as even people who get all their information from Wikipedia would know that what happened in the Oasis matter was a conflict of interest. Wikipedia states:
A conflict of interest occurs when an individual or organization (such as a policeman, lawyer, insurance adjuster, politician, engineer, executive, director of a corporation, medical research scientist, physician, writer, editor, or any other entrusted individual or organization) has an interest that might compromise their actions. The presence of a conflict of interest is independent from the execution of impropriety.
Hlophe’s interest here was that small matter of having been paid R500 000. This might have compromised his decision to grant the company who paid him this money (which looks suspiciously like a bribe) leave to sue a fellow judge. The fact that Hlophe seems to disagree, is astonishing. This is even more so, given the fact that even the JSC at the time concluded that Hlophe had exposed himself to a conflict of interest.
We also know that President Jacob Zuma’s office has been spreading rumours that Zuma does not like Hlophe and that he has no chance of being appointed to the Constitutional Court. Although Hlophe clearly has his supporters in the ANC, the support does not seem to come from the top. Who wants to be associated with such an embarrassing man?
But this is not why I think Hlophe will not be appointed to the Constitutional Court. Instead, I believe that Hlophe will not be appointed because he is ruthless, will stab his “friends” in the back when it will advance his own interest and therefore cannot be trusted to do what is required. A wily politician like President Zuma must surely know this and will not be stupid enough to trust Hlophe.
A case in point is Hlophe’s statement to the JSC yesterday that he does not know Advocate Percy Gumbi of the Justice for Hlophe Alliance. Nor, so did Hlophe claim, did he know anything about or support the statements of the JFHA.
Gumbi had in the past confirmed that Hlophe sanctions their activities and Hlophe had signed a nomination acceptance form bearing the name and contact details of Gumbi and the alliance. The nomination document also at some point slips from the third person into the first person, suggesting that it was at least partly based on something Hlophe himself had written. But like that guy we are told about in the New Testament, Hlophe decided it was time to cut loose his “friends” and denied what seemed pretty impossible to deny.
Even if I was a fan of Hlophe (which I happen not to be) and even if I was a politician who hoped to appoint “sound” judges on the Constitutional Court who would make decisions that would benefit myself or my party (which I am not), I would not appoint Hlophe to the Constitutional Court. What might Hlophe do when the political winds shift and his interests demand something different from what one had in mind for him?
Only the most gullible among us would back the Hlophe appointment in the hope that he would act in a predictable manner to advance any particular cause (except of course the cause of Hlophe himself).
Besides, Hlophe is Judge President of the Cape High Court in the province run by Helen Zille’s DA. Better to keep him there to ensure the court in the opposition-run province remains dysfunctional and deeply divided. Would serve those bloody voters right who had the cheek not to vote for the ANC.BACK TO TOP