Hlophe decision will be bigger than Zuma

Over the weekend IOL and the Weekender carried articles concerning the Judicial Services Commission hearing into the allegations made by the Constitutional Court judges against Judge President John Hlophe and his counter-charges against them.

Hlophe has been charged with unlawfully attempting to influence two of the judges in respect of the matter which was previously being pursued against presumptive national president Jacob Zuma in order to advance his political career. Hlophe in turn has alleged that the judges concerned had breached his right to dignity and equality on account of their announcing the charges aforesaid against him prior to any charges being formulated. The latter was confirmed by a lower court judge before being overturned by the Supreme Court of Appeals on appeal.

The articles above, however, relate to JSC Commissioner Mvuseni Ngubane’s dissenting view on the decision — and the basis therefore — to refuse Hlophe a postponement of his matter on the 7th April 2009. This refusal resulted in two days of evidence being led without Hlophe’s presence.

Ngubane referring to deliberations of the JSC — which are supposed to be kept in the strictest of confidence — said that the commissioners had been concerned that after the elections certain of them would be replaced. This refers to the fact that out of 13 commissioners 4 are chosen by the president while the remaining 9 are appointed by attorneys, legal scholars and advocates.

Moreover Ngubane confirmed that those who supported Hlophe (minority) were determined to postpone the hearing while those who supported the Constitutional Court judges were adamant it go ahead.

Ngubane says that, in the JSC’s confidential internal discussion on the issue, a “view was expressed that we must make sure that we at least start the evidence in order to have the matter partly heard before the current commissioners so that ‘when they (the new administration) start doing their shenanigans after the election on April 22 2009, we shall be seized with the matter’.”

Ngubane says he believes the issue of the replacement of commissioners is “irrelevant and should not have been considered”. (In this regard he is in fact correct.)

“The reason given by the majority of the commissioners for refusing the postponement, however, was that it “was manifestly in the interest of the parties, of the administration of justice and of the public, that there should be no further delays”.(Weekender)

Of course to all this must be added the fact that the sick note upon which Hlophe had relied upon for his absence had lapsed before the hearing had even started.

Where does that leave it?

Hlophe is now claiming that the JSC is guilty of political bias. The JSC had instructed him to advise them by the 8th May 2009 whether he will be appearing before them to give evidence on his own behalf or alternatively furnishing them with written submissions. In this regard my understanding is that Hlophe’s legal team will now, based upon the allegations of bias, be making application before the High Court in Johannesburg this week in order to obtain an interdict and a declaratory order against the JSC. In addition he has previously filed papers in the Constitutional Court seeking leave to appeal the judgement of the SCA which overturned an earlier decision confirming his rights to dignity and equality had been breached. Considering the fact that this is the same court in which the complainants sit as judges this will create quite a legal quandary.

Let’s break this down a step further:

If the JSC is guilty of any bias then the parties concerned must recuse themselves from hearing the matter. In addition if Hlophe requires assistance or be allowed to challenge the evidence that has already been led then so be it. In terms of his right to dignity and equality he would best be served by dropping an appeal he cannot win and proceeding with a claim for defamation.

What it does not mean is that this matter should be allowed to drag on ad infinitum while a judge president who is facing the most serious charges imaginable be allowed to continue presiding over matters. This would signal the start of the Zuma presidency where Motlanthe’s left off; total disregard for the criminal justice system and the judiciary in the case of those who are in power or well-connected to them.

In terms of Zuma himself I asked for a political solution in January 2008 in order to avoid the violence that was starting to manifest itself and the collapse of our criminal justice system. This was largely ignored and by the time that the NPA made their legal decision in early April this year (based upon political reasons if you like) the NPA’s integrity was in tatters, the Scorpions were gone, Pikoli was sacked, the NIA was implicated in a bugging scandal and half the judiciary was embroiled in this quagmire.

I had spent the better part of last year and the beginning of this one defending the criminal justice system and the judiciary and calling for Zuma to step down until his matter had been heard. Would have been nice if we had had a political solution before the meltdown.

Anyhow in the case of Zuma we find a popular president whose dismissal as deputy president occasioned a split in the ruling party. As a result there were those who believed that the case against him was based upon a political conspiracy. The end of that matter brought with it a lancing of the boil and a collapse of the tension which had permeated the country just prior to the election. It also left many state organs with a whole mountain of soul-searching and house-cleaning to do. Where that lands up only time will tell.

Zuma’s popularity lends itself in no small measure to the promises that have been made to the masses of this country. Should it transpire that for reasons of global economic meltdown or otherwise that the government is unable to deliver to the millions of disadvantaged people who have pinned their hopes on the new administration then the rule of law and order will be all that stands between them and Armageddon. As Michael Francis correctly pointed out South Africans have a propensity for violence in response to political problems. Our history shows how right he is.

Hlophe’s matter is now part of the Zuma presidency ie post elections and subsequent to the political conspiracy. There is no issue of race involved but rather the question of whether he did try to influence judges to rule in favour of Zuma for personal gain. If he did there is no place for Hlophe in our judiciary.

Should Hlophe be allowed to avoid facing the JSC and answering that question based upon legal technicalities then the masses of our country — who despite views to the contrary are far more knowledgeable than they are given credit for — will know that there is one rule for the rich and another for the poor. That justice is there for those who have money and influence.

In their own case they can look forward to jail should they run foul of the criminal justice system; often as a result of desperation. Not for them legal niceties and drawn out litigation, which are beyond their reach, simply years in jail without any prospects when they get out.

As such should the government allow the rule of law to be perceived as a rich-man’s toy and the plight of these masses deteriorate then they will turn to the only justice that they are able to believe in.

Think long and hard before the Zuma era continues the previous manipulation of our legal system. In hindsight you may well find that the approach to Hlophe in terms of impact outweighs even the NPA decision on Zuma.