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.
FORMER Judge Johann Kriegler’s decision to challenge the JSC’s decision not to hold a hearing into the conduct of Judge John Hlophe and the judges of the Constitutional Court has quickly descended into a race row.
Which is a pity. Cyril Ramaphosa resigned from Freedom Under Law, the body that Kriegler is using to challenge the JSC’s decision saying he had not been consulted. Fair enough.
But JSC Dumisa Ntsebeza played the race card, saying: “It is impossible to live with the very obvious condescending attitude toward black people which has become a repeated theme in his [Kriegler's] statements.”
Really? My experience of Kriegler is that he does not mince his words. Like most judges he is condescending to everybody. Just ask anyone of any race who covered the 1994 election when he was chair of the IEC.
What is far more important is to deal with the substance of Kriegler’s objection which is that there was a dispute over fact which will not now be resolved one way or the other.
For the justices of the Constitutional Court and a provincial Chief Justice to be at odds over the facts is a serious problem. Exactly the sort of problem which the JSC ought to resolve, lest the stain remain on the judiciary.
This is what has prompted Kriegler to warn that we face “the biggest threat to rule of law the country has experienced since it emerged from darkness”.
THERE is no longer any doubt that Judge Nkola Motata was drunk when he crashed his Jaguar into a suburban garden fence.
Magistrate Desmond Nair pointed out that a reasonable person would have got out of his car to inspect the damage after such an accident.
But, said Nair, Motata “sat in the car instead of alighting from the vehicle to inspect the damage, sat slouched and slumped, appearing to be sleeping and slumbering”.
Then there were the audio recordings published first on our website in which Motata’s speech was slurred.
Said Nair: “If a picture told a thousand words, the audio recordings told ten thousand words.”
Motata’s conviction would automatically disqualify him from serving on the bench in any society with a properly functioning criminal justice system.
But are we such a country?
Last week, the Judicial Service Commission found that Judge John Hlophe’s conversations with fellow judges about a case in which he said the accused was being victimised were not worthy of an inquiry.
This despite a complaint laid at the JSC by the Constitutional Court, whose bona fides cannot be questioned.
Now the JSC has to deal with the Motata case. If the Hlophe matter was complicated, the Motata matter is simple.
He has been found guilty of the criminal offence of driving drunk. The fact of his criminal record alone should be sufficient to remove his robes.
But, more than that, he has shown appalling judgement,
has lied under oath by claiming saying that he had only been drinking tea and has exhibited all the qualities of someone who belongs in the dock rather than on the bench.
The JSC must act with haste to restore the dignity of the bench.
The Judicial Service Commission has ruled that there is no evidence of “gross misconduct” on the part of Judge John Hlophe, following a complaint by the Constitutional Court that he tried to improperly influence two judges. The ruling read: “On 15 August 2009, the Commission, by a majority, decided that none of the Judges against whom complaints had been lodged is
guilty of gross misconduct.”
But it did say the following:
“Neither of the Judges expressly
says that Hlophe JP asked that the cases be decided in Mr Zuma’s
favour. Both say that they inferred that Hlophe JP desired that result
on the basis of other things that Hlophe JP had said, for example,
that the cases must be decided properly and that Mr Zuma was being
persecuted like he (Hlophe JP) had been and that the Constitutional
Court was their “last hope”.
“The Commission accepted that it might have been unwise and
imprudent for Hlophe JP to talk to the Judges about the cases and
make the comments that he did. But it is not persuaded that Hlophe
JP’s actions make him guilty of gross misconduct.”
So, from now on it’s “unwise”, but okay for a judge to discuss cases with other judges, even going so far as to say that the accused is being unfairly persecuted. Not good.
Read my comment – Hlophe ruling a very bad precedent for the rule of law – here.
Ruling starts here:
Complaints of Constitutional Court Judges against Hlophe JP and the
counter-complaint by Judge President Hlophe against the
Constitutional Court Judges
1. In this matter, the Judicial Service Commission has been asked to
rule on two complaints that were lodged with it in May and June
2008. First, a complaint by the Judges of the Constitutional Court
that the Judge President of the Western Cape High Court, Judge
Hlophe, in the course of separate conversations with Judges Jafta and
Nkabinde in March and April 2008, had sought improperly to
persuade them to decide the Zuma/Thint cases in a manner
favourable to Mr Zuma. Read More…
THE Judicial Service Commission is once more attempting to hold an inquiry into the behaviour of Judge John Hlophe behind closed doors.
This can only be justified if the commission believes that judges ought to enjoy special status that ordinary citizens do not enjoy.
The inverse is true. Judges must be above suspicion and any examination of their behaviour must not only take place in pubic, it must occur the full glare of the spotlight.
A man accused of stealing an orange is tried in open court because the public has the right to know about such affairs.
The place the officers of the same courts in some sort of elite category deserving of “protection” from the public is dangerous.
It presupposes the creation of a new class of citizen who should not be subjected to public scrutiny.
The matter is now the subject of a court case — one which is incidentally being held in public — as media organisations challenge the behind-closed-doors decision.
There is an immediate irony. Those trying the case will be making a decision which could one day subject themselves to the same public scrutiny should they ever be accused of transgression.
Hopefully this will not be one of their considerations as they deliberate on this matter.
They should consider that a closed-door ruling in favour of a judge will enjoy less credibility than one which takes place following an open hearing.
Transparency is not only an important hallmark of democracy, it lends legitimacy to institutional decision-making.
Let’s hope that this judgement will be one which returns openness to the management of the judiciary.
Helen Zille, Leader of the Democratic Alliance
12 June 2009
Without an independent judiciary, the doctrine of the separation of powers becomes a dead letter, the rule of law disintegrates, and democracy dies.
We all know that “transformation” is a code word the ANC uses to justify the extension of its control over state institutions that should be independent from the ruling party. Cadre deployment is the key tool of “transformation” that seeks to make these institutions accountable to the ANC, rather than to the Constitution. This is why it was worrying to hear President Jacob Zuma talk about the “transformation of the judiciary” in his State of the Nation Address. Read More…
THERE was something unsettling about Justice Minister Jeff Radebe’s decision to pull the plug on the Judicial Service Commission’s interviews for new judges yesterday.
The commission, which is supposed to assess and recommend candidates independently of the state clearly thought it was business as usual. Three judges – Judge Ronnie Bosielo, Judge Erich Leach and Judge Bennie Griesel – had mad etheir way to Cape Town to be interviewed.
Then came Radebe’s bombshell: “We need to have time to make an assessment of the constitutional imperatives of the racial profile and the gender representivity of the judiary so that by the time we do these interviews, we have the whole context of what has been happening since 1994.”
It got worse. Said Radebe’s spokesman Tlali Tlali: “The question is: What do we understand by the independence of the judiciary. This is about everyone moving to the same beat on the issue of transformation of the judiciary.”
This move represents a power play and signals that government intends to become more actively involved in the appointment of judges. By calling off the meeting, Radebe was sending a clear message about his interpretation of the independence of the judiciary. You can guess what it was.
Following on my earlier post, The five biggest mistakes of the new South Africa, here is my promised look at the up side of post-apartheid South Africa.
1. THE ELIMINATION OF INSTITUTIONALISED DISCRIMINATION
The formal end of apartheid in 1994 was a symbolic act. Over the next ten years, the new government had to work very hard to undo the legislative scrambled egg to place all citizens on an equal footing, enjoying the same basic rights. Masses of legislation made their way through parliament under Nelson Mandela, opening up education to all, allowing access to health facilities and removing obstacles to movement and involvement in the economy. This was a huge accomplishment which, accompanied by a massive campaign around reconciliation, was without the rancour – except for among a small portion of the beneficiaries of apartheid – that such transformation could have attracted. The lives of millions of South Africans were instantly touched by this legislative programme which ensured the legitimacy of the new state with the majority of the people. Read More…