Who is to blame for the stress placed on the judiciary and the legal profession by the saga around Cape Judge President John Hlophe? The National Association for Democratic Lawyers (Nadel) seems to suggest that those who had criticised the original decision of the Judicial Services Commission not to pursue the complaint against Judge Hlophe should bear the brunt of the blame.
According to a Nadel press release, this comment “had undermined constitutional institutions, in particular the Judicial Service Commission (JSC), called into question the integrity of the chief justice — who presides over the JSC — and polarised the judiciary and legal profession along racial lines”.
In a cogent and well-argued article in Business Day on Wednesday morning, my colleague, Sibonile Khosa, writing with Sibonile Ndlovu, argues that it is the JSC itself that is really to blame for the mess and that we have a democratic right to criticise it for creating the mess.
The well-known legal principle says “justice must not only be done, but must also be seen to be done”. The JSC’s failure to adhere to this principle is what makes its finding controversial. There is a significant amount that we do not know, which has allowed all sorts of conclusions to be drawn.
They also argue that those who are calling for Judge Hlophe to resign are missing the point.
Hlophe has been cleared by the JSC. Calling for him to resign is tantamount to calling for an acquitted person to hand himself to prison authorities, simply because certain sectors of the public think he is guilty.
It seems to me that these comments are revealing, not for what they say about Judge Hlophe and his actions, but for what they avoid saying. Although I agree with Khosa and Ndlovu that the JSC has handled the matter very badly, the fact remains that in the end the person who in the first place had caused all the stress to the legal profession and the judiciary is Judge Hlophe himself. If only he had acted properly — like any judge is supposed to — no damage would have been done.
The JSC has made it clear (see Business Day article here) that its decision not to hold a formal public inquiry into complaints against Judge Hlophe did not constitute an exoneration. It meant only that a commission majority held that there was insufficient evidence on which to hear the complaints, it said.
In my opinion, the problem with this line of reasoning by the JSC is not necessarily, as Khosa and Ndlovu argues, that the public do not know the facts, but exactly that we do know enough about the facts, and that these facts all suggest that the judge president is not fit to sell second-hand cars — let alone act as a judge president.
We know that when first confronted with the fact that he was receiving money from Oasis, the judge president told a bare-faced lie and claimed this was a negligible amount for “out of pocket” expenses. Later it turned out to have amounted to almost R500 000 and that it was for “services rendered”.
We know that the judge president claimed that he had been given permission to do this work for Oasis by the justice minister, Dullah Omar, but that the fund for which he worked was only set up more than a year after the minister had left office. We therefore know that this excuse is about as believable as anything Schabir Shaik came up with during his fraud and corruption trial.
Finally, we know that while receiving money from Oasis, the judge president gave permission to it to sue a fellow Judge, thus acting in a completely unethical and inappropriate manner.
What we do not know is why, confronted with all these facts, the JSC still decided not to proceed with a hearing against Judge Hlophe. Did the majority of its members really not think this is serious enough to warrant impeachment or did they feel sorry for the judge and decided to make an unprincipled decision not to pursue the matter despite the seriousness of the charges?
In any event, it seems the matter is not going to go away. Writing in the Cape Times this week, Peter Hazel, the advocate who brought the initial charges against Judge Hlophe, laid down an ultimatum to the judge president: resign or Hazel would take the decision of the JSC on review.
This will be an unprecedented step. I am not sure that it will be successful because the JSC is a constitutional body and to what extent its decisions can be taken on review will have to be decided by Judge Hlophe’s colleagues in the Constitutional Court. But it will expose the judiciary and the JSC to more agonising scrutiny and will further besmirch what is left of Judge Hlophe’s reputation. It really would be wise for him to resign.
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