The case of Judge John Hlophe, the champion of transformation and a revolutionary, is one hell of a mess that has left the judiciary at a crossroads. It is going to take men of fearless courage to rescue the situation and political correctness will have to fly out the window. The Judicial Services Commission has to once and for all rescue their good name or forever be regarded as a faction in the battle for the soul of the African National Congress (ANC).
It all started one balmy day when the Judge was accused of receiving kickbacks, sorry, a retainer, from Oasis. Oasis wanted to sue another judge for whatever reason and the rules required that they must first get permission from another judge, usually the judge president. Judge Hlophe, as the judge president, had to adjudicate this matter but did not recuse himself because of a conflict of interest because he was receiving a sizable chunk of money on a regular basis from this company. He allowed the company to sue the other judge. This matter was referred to the Judicial Services Commission (JSC) on the basis of the transgression of a rule that require a judge to obtain written permission from a Minister of Justice before he can enter into any contract with members of the public to render a certain service and on a conflict of interest also issue. Impeachment was sought. It emerged during the hearing that there was no written permission from the Minister as required by the rules and in his defence Judge Hlophe alleged that he had obtained verbal permission from the Minister to render services to Oasis.
The unfortunate thing is that the Minister who gave the permission had long passed away and this allegation was difficult to prove. It also emerged that the transaction between Hlophe and Oasis was entered into at the time the said Minister was no longer the Minister of Justice. An important point to mention is that the said Minister was also a lawyer by profession and had been a successful one at that.The JSC ruled that there was nothing irregular that Judge Hlophe did and agreed with him that he got verbal permission from the Minister and therefore that he could not be impeached. The hearing was held in camera!
One of the principles law students are taught is one of the reasonable man test. The principle is taking everything into account what would a reasonable man have done. You have two lawyers, one is a judge of eminent repute and the other is a Minister of Justice. Would a reasonable man expect them just to have a verbal agreement about something that goes right into the heart of the administration of justice without reducing it to writing as required by the rules they ought to be aware of and they took an oath to uphold? What about the fact that the transaction was entered into long after the said Minister was no longer the Minister of Justice? Be that as it may it seems that the JSC failed to apply this basic principle in arriving at its decision.This decision was taken at a time when Judge Hlophe "exposed" the rampant racism prevalent on the Cape bench and this was seen as an attempt to deal with him once and for all. The champion of transformation won!
In scene two where the Judge is accused of improperly trying to influence the judges of the Constitutional Court (CC) and this is where things become messier. It becomes difficult to classify this as a plot by racists aimed at distabilising the revolution. But in a related matter the judges of the CC have already been called counter revolutionaries. Some role players in the legal profession chose to take sides and the Black Lawyers Association (BLA) as an example firmly take sides with Hlophe. Conspiracies are abound and in the process of trying to dispense with the matter speedily, the JSC messes up on another important principle: Hear the other side. They dismiss Hlophe’s request for a postponement because he is sick and he has a sick note to prove it. There are accusation and counter accusations between Hlophe and the JSC, the JSC members itself and the situation deteriorates further and a court of law intervenes.
Another mess is added in that while these shenanigans are going on elections for the new JSC are held and new members are elected to serve, some of whom have had an interest in the matter or have expressed an opinion on the matter and this brings in issues of conflict of interest. As an example Advocate Dumisa Ntsebeza is a new member of the JSC and he represented Hlophe in this matter. Another new member of the JSC Advocate Andiswa Ndoni, as a representative of the BLA, went publicly to say that they supported Hlophe in his fight against the CC judges. More fuel into the fire, which I don’t think the JSC will come out of with flying colours.
Now they have decided to start the whole thing afresh and they want to hold the preliminary hearings in camera! Don't they learn!The JSC continues to stumble from one crisis to another because they consider of their making. Champion or no champion of transformation just apply the rules as they are supposed to be applied and stop looking over your back. Hold the inquiry in public and if the media distorts the information you can set the record straight on your website or the SABC!Save your reputation!!!