Published originally: 28 August 2009
The whole episode reflects badly on all involved: on our judiciary; on the Judicial Service Commission and on Judge Hlophe.
The delay in the announcement of the decision and the fact that the minority felt obliged to issue their own decision point to serious divisions within the JSC.
The prime question was whether the complaints against Hlophe should be referred to a formal hearing at which they could be properly tested by cross examination and the presentation of additional evidence.
Such a process would have definitively settled the questions that had been raised once and for all. As matters now stand the issue remains unresolved. In particular, either the Judge President of the Western Cape or the Constitutional Court Judges concerned must have lied. This creates an intolerable situation, since it undermines the credibility of both Judge Hlophe and the Constitutional Court. It would be gross misconduct for any judge to lie in evidence, and especially under oath.
The issue involved - whether or not Judge Hlophe had a mandate to influence the Court - is not one of minor significance. Indeed, it cuts to the heart of South Africa’s system of democratic governance and the rule of law. The public has a right to know whether some or other party was, in fact, trying to influence the Constitutional Court improperly. This question could only be properly addressed by a formal hearing.
The complaint should be read together with the previous equally serious complaints against Hlophe JP. These included charges that he had received substantial payments from a party appearing before him without declaring his interest; that he had not paid tax on these payments; and that he had insulted an attorney in the presence of witnesses in a crude and racialistic manner. The JSC’s failure to deal with those complaints in a credible manner was the precursor to its continuing failure to address the current situation properly.
The Judicial Service Commission has failed in its duty to uphold the integrity of the judiciary. The minority members on the Commission were correct: the complaint should have been referred to formal hearing to establish, once and for all, where the truth lies.