THE Judicial Service Commission faces a stark choice: It must act swiftly to re-establish its credibility or take a defiant stand that further erodes the the South African judiciary.
The commission, called into being by Chapter 8 of the Constitution, was designed to ensure the “independence, impartiality, dignity, accessibility and effectiveness” of the courts.
It is supposed to ensure that the best minds find their way to the bench by recommending appointments to the judiciary and that the behaviour of judges is above criticism.
The commission is made up of the country’s senior judge, attorneys and nominees from the ruling party and the opposition with the purpose of bringing about transparent, accountable management of the courts that is free of political bias.
It’s actions around Judge Hlophe suggested that it was drifting from this prescription.
That is putting it too politely. In fact, the Hlophe hearings were a low point for the JSC. They demonstrated that political influence could be brought to bear when it came to evaluating the conduct of judges.
It is worth recalling what Hlophe had been accused of doing.
He had visited two Constitutional Court judges, Judge Bess Nkabinde and Acting Judge Chris Jafta, in their chambers in an effort to influence them on a matter before the land’s highest court. The matter involved none other than President Jacob Zuma.
Zuma — through his lawyer, Michael Hulley — and the arms manufacturer, Thint, wanted documents seized during raids on their premises declared inadmissible as evidence. At the time, Zuma faced prosecution for his role in bribes related to the arms deal.
Hlophe had, according to Jafta, claimed that Zuma was being persecuted. His pay-off line to the judge was: “You are our last hope.”
In a ruling which shocked the legal profession and the public, the JSC, after hearings held in camera, bought Hlophe’s patently false claim that he was simply having a friendly discussion with colleagues.
No formal inquiry was needed, said the body charged with maintaining the “dignity” of the courts.
It’s words were: “The Commission, by a majority, came to the following conclusions: that the evidence in respect of the complaint does not justify a finding that Hlophe JP is guilty of gross misconduct and should accordingly be removed from office …”
It was a decision which paved the way for a loosening of the discipline surrounding the judiciary — it was now okay for a judge to discuss a case, even express and opinion on what should be concluded, with a colleague.
The Appeal Court has corrected this mistake. Now the ball is in the court of JSC. It must act swiftly to restore public confidence — or prove that it is part of the problem.

Related posts:

1. Hlophe ruling: A very bad precedent for the rule of law
2. JSC’s ruling in favour of Justice John Hlophe – full text
3. JSC contradicts itself and dumps Hlophe
4. Supreme Court ruling on Hlophe good for media freedom
5. The shame of Judge Hlophe