Urgent action required to mitigate damage done by Hlophe decision

The reactions, ranging from disillusionment to disgust, of the legal fraternity and the public at large to the judiciary in general and the Judicial Service Commission (JSC) resulting from the latter’s decision on Western Cape Judge President John Hlophe should not be underestimated. The Democratic Alliance (DA) believes that urgent action is required to mitigate the damage done to the reputation and stature of the Bench.

The JSC’s decision was a slap on the wrist for Hlophe, albeit a severe one. The JSC acknowledged it was divided over the matter of an appropriate sanction in commenting that Hlophe’s explanations were “unsatisfactory” and his failure to disclose his interest in the Oasis/Desai case “inappropriate”. A dressing down by three of the top judges in the country, including the chief justice, is to follow.

The fall-out from the decision continues unabated with retired Constitutional Court Judge Johann Kriegler claiming Hlophe is not a fit and proper person to be on the Bench and that he has betrayed his integrity through greed. He has been publicly backed up by a large number of top members of the Cape Bar Council who have clearly lost patience with their judge president, and now the Black Lawyers’ Association (BLA) has entered the fray against Kriegler.

While the JSC is within its rights to decide not to go all the way and recommend impeachment, the fact that there is no middle-ground sanction for judges whose conduct falls short of expectations continues to be a problem. The reason for this is the delay in passing the Judicial Service Amendment Bill.

The Bill provides for an open tribunal process to deal with more serious complaints against judges that can lead to impeachment by Parliament, but can also result in other, less serious sanctions being imposed should this ultimate step not be judged appropriate. It also provides for a much-needed code of conduct for judges and rules governing disclosure of assets and interests. The Bill provides for a transparent process in disciplining judges, which is currently lacking. The current “Star Chamber” process used by the JSC, where proceedings are held in camera and minimal information is provided on reasons for decisions, merely serves to fuel controversy.

The Hlophe decision appears to be forcing people to take sides — the BLA versus Kriegler, for example. The BLA has now called for the JSC to investigate Kriegler for criticising Hlophe and the JSC decision not to impeach Hlophe, which unfortunately misses the point entirely.

A judge is a public figure who represents law and order and his or her conduct should be open to public scrutiny and comment. In particular, other judges with established reputations and proven integrity are the very people we should look to for comment and analysis. They, as do we all, have a vested interest in ensuring that the judiciary is seen to stand for dignity, honour and integrity. The implication of the BLA’s position is that compromised judicial integrity, poor judgement and dubious conduct will not be punished, while fair comment can be attacked.

The DA believes the Judicial Service Amendment Bill needs to be expedited.