On a sad and shameful decision by the JSC

It comes as no surprise that the JSC has decided not to institute proceedings that could lead to the impeachment of Judge President John Hlophe (pictured). I am on record as suggesting that Judge Hlophe had skillfully used the genuine concerns about transformation and racism on the bench and in the profession to save his own skin. That does not make the decision of the JSC less shameful or shocking, though.

In a country like South Africa, where race inevitably and comprehensively infects every aspect of public life, it was probably inevitable that Judge Hlophe would in effect be given a second chance by the (black) majority of members of the JSC. I heard rumours that ANC Parliamentarians had already indicated to the JSC that even if an impeachment recommendation is made, they would vote against it, so this might also have influence the JSC to make the spineless and disgraceful decision it did.

On one level, the decision by the JSC reminds us of how fractured and messed up our society still is. Facing an obviously correct but emotionally difficult decision that would have seen the downfall of a man who had worked himself up from gardener to Judge President, the majority of members of the JSC could not do the right thing, perhaps because this would have seemed like an endorsement of racist stereotypes.

The irony is, of course, that the decision will fuel, not undermine, the racist stereotypes that some whites have of black lawyers and judges. Those who are professional whiners and love to find fault with everything in the new South Africa will use this decision to crow about how "everything is going to the dogs". What do the rest of us tell them this morning? How do we defend this decision by the JSC - except to appeal nakedly and barrenly to race?

The dishonesty of the JSC decision is clear for all to see. Their claim that there was not sufficient evidence to proceed with a public inquiry regarding the main count of receiving payment from Oasis without consent from the minister, is, in fact, laughable. The statement issued by the JSC is also contradictory because the commission expressed dissatisfaction over some of the explanations it had received from Hlophe.

Lawyers have a wonderful way with words when they do not want to make the truth sound too damaging and this last sentence is a textbook example of that lawyerly skill. Dissatisfaction with some of the explanations offered by Judge Hlophe can be translated as: The Judge President had lied to the JSC but let's just forget about it because we do not have a smoking gun that will force us to act.

The JSC had to say something to this effect to try and salvage some credibility for themselves. The unpalatable fact is that only those who believe that Father Christmas really delivers presents on a sleigh on Christmas eve could possibly have believed that Justice Hlophe had received permission from Dullah Omar to do work for Oasis. No member of the JSC (or Judge Hlophe for that matter) could possibly provide a cogent explanation for the fact that by the time Hlophe started doing "work" for Oasis, Minister Omar had not been the Minister of Justice for eighteen months.

Please people, you are insulting our intelligence and hurting our democracy and respect for the judiciary. You are placing the interest of one rich, influential, well-connected - admittedly previously discriminated against - man (Judge Hlophe), above the interests of the 45 million South African's who wish to live in a country that adheres to the Rule of Law under an independent and respected judiciary. It is a deeply short-sighted decision and ever member of the JSC who supported Judge Hlophe should hang their heads in shame.

As my mother would have said: "Sies, julle behoort julle te skaam!"

Corruption charges against Hlophe?

The Mail & Guardian carries an explosive story pointing out that in terms of section 8 of the Prevention and Combating of Corrupt Activities Act 12 of 2004, Judge President John Hlophe may well be found guilty of corruption if charged.

The Act, which was introduced in 2004 to make it easier to prosecute those who bribe and take bribes, explicitly prohibits a judicial officer from accepting – either directly or indirectly – any "gratification" from any other person in order to act in a way that amounts to amongst others:.

• illegal, dishonest, unauthorised, incomplete, or biased: (sic) or
• the abuse of a position of authority;
• a breach of trust; or
• the violation of a legal duty or a set of rules;
• any other unauthorised or improper inducement to do or not to do anything;

is guilty of the offence of corruption.

Section 24 contains a reverse onus provision stating that where the state can further show that despite having taken reasonable steps, it was not able with reasonable certainty to link the giving and/or accepting of the money with the abuse of power etc, that person will still be found guilty unless he or she can present evidence that would raise reasonable doubt about the commission of the offense.

This means that on the available evidence revealed in the defamation case of Judge Siraj Desai, Judge Hlophe (and also Oasis) would be presumed to have committed a crime unless they can show that they never had the intention of bribing and being bribed. This is because we know almost R500 000 in “gratification” was paid to Judge Hlophe, that after first refusing and after much pressure was brought to bear, he gave permission for Oasis to sue Judge Desai.

If charged Judge Hlophe will have to argue that he never thought of the money as a bribe and was not influenced by the payment of large sums to him by Oasis to change his mind. In other words, he will have to argue that he was not bribed but bullied by Oasis to change his mind. “I am not corrupt,” he will have to say, “just weak and easily pushed around.” Not an ideal position for a Judge President to find himself in.

The Mail & Guardian also reports that the JSC will meet next weekend to discuss the case. Surely, even the most die hard supporter of Judge Hlophe must now see the writing on the wall? If he has any good friends they must surely whisper in his ear that he should resign before he is impeached and criminally charged.

But perhaps Judge Hlophe really has convinced himself that this is all a plot against him and that he is being persecuted and thus the victim. I think that this would be a mistake and that the tide had now decisively turned against the Judge President. If he cannot see that, he is not a wise man.

As I have heard via the grapevine that Oasis bosses have said rather nasty things about me when job applicants used me as a reference for a job application at Oasis, I am particularly interested about what will happen with Oasis and its bosses. If Judge Hlophe is impeached and charged, surely the bosses at Oasis should also be charged.

If they are charged the aborted defamation case they launched against Judge Desai will go down in history (along with Oscar Wilde's defamation case against the Marques of Queensbury) as one of the most monumental blunders.

Will Judicial Tribunals save our judiciary?

For most reasonable people in South Africa it must seem very difficult to understand why Judge President John Hlophe (pictured) is still a sitting judge on the Cape High Court. Some of us have argued that Judge Hlophe would long have been impeached if only legislation had been in place that allowed for a complaints mechanism against judges.

A closer look at the draft legislation suggests that this might be an optimistic view. It is worth revisiting the Hlophe case to see whether the provision of the Judicial Service Commission Amendment Bill would have made a difference in this case.

We know Justice Hlophe received more than R500 000 from Oasis Holdings for what he claims was “out of pocket” expenses. We also know that he first refused to grant permission to Oasis to sue fellow judge Siraj Desai, but then changed his mind at a time when he was still receiving regular payments from Oasis. As Shameela Seedat of Idasa has pointed out, this constitutes a clear conflict of interest and cannot but create a reasonable suspicion of bias in the mind of any reasonable person.

On the face of it, the new Bill would make it much easier to lodge complaints against someone like Judge Hlophe and would ensure that such complaints are dealt with far more promptly and honestly. In terms of the Bill complaints would be lodged with a “Judicial Conduct Committee”, comprised of the Chief Justice and Deputy Chief Justice and three other judges.

This Committee would then have the power to decide whether the matter is serious enough to constitute an impeachable offence or whether it is a lesser complaint not warranting impeachment. Unlike in the present system, the decision would rest in the hands of judges and the politicians or political appointees on the JSC would not be able to get their grubby little hands on the matter until much later.

If the complaint was less serious, one of the judges on the Committee would then investigate the matter and will be able to get to the bottom of the matter. If necessary a formal hearing would be held and the presiding judge would be able to make factual findings for or against the Judge being accused.

One presumes that a presiding judge would act – as in any other fact-finding matter – in good faith and would not come to the kind of absurd conclusions seemingly favoured by some members of the JSC. Thus, one assumes a judge would find it difficult to conclude that a dead Minister of Justice gave permission to an accused judge to receive money from a company from 2001, when that Minster ceased to be Minster of Justice in June 1999.

In terms of the Bill, if the Committee felt that there was a prima facie case (that phrase again!) for impeachment, it would have to refer the matter to a Judicial Conduct Tribunal. Such a Tribunal would be appointed by the Chief Justice and would consist of two serving judges and one non-judicial member approved by the Chief Justice.

The Tribunal would then have a duty to hear the case for impeachment “without unreasonable delay” and would be able to subpoena witnesses. It would then be able to make recommendations to the JSC for the impeachment of the accused judge if they thought this appropriate. The Act would make it a criminal offence to “knowingly provide false information to the Tribunal” – a clause that should strike fear in the heart of Judge President Hlophe.

The big problem with the draft legislation is that section 20 of the Bill provides that the JSC would be able to receive further submission from the accused judge and then to choose not to follow the recommendations for impeachment by the Tribunal. This is done, one assumes, because the Constitution explicitly states that the JSC should make a recommendations of impeachment to the National Assembly.

However, it means that political support on the JSC for a specific judge could save that judge from impeachment despite the fact that a panel of judges had found that the judge was grossly incompetent or guilty of gross misconduct. In such a scenario respect for the individual judge and for the judiciary would be severely compromised.

Imagine a Tribunal found that Judge Hlophe was guilty of gross misconduct by taking a bribe from Oasis in exchange for giving permission to sue Justice Desai. Imagine further that the JSC then rejected this finding and only gave Judge Hlophe slap on the wrists and allowed him to continue as Judge President.

Such an outcome would be an utter disaster for the judiciary and for our democracy and one would think the members of the JSC would be wise enough to know this and avoid such an outcome. But recent events suggest that there are many members on the JSC that do not have the best interest of the judiciary and our democracy at heart, so it remains a grave concern.

Hlophe not off the hook after all?

When the Judicial Services Commission issued a statement in December last year stating that there was no evidence to contradict the claims of Justice John Hlophe that he had received permission from the late Justice Minister Dullah Omar to receive retainers from the Oasis company, some of us suggested that the JSC acted in an unprincipled manner.

So it is difficult to know what to make of the JSC announcement on Friday that the commission would wait for the outcome of a defamation case brought against judge Siraj Desai by investment company Oasis Group Holdings before considering a complaint lodged by Advocate Peter Hazel. This move can, of course, be interpreted as another display of spinelessness by the members of the JSC.

But I suspect the announcement may suggest that the JSC has been stung by criticism against them and may be ready to re-open the Hlophe matter. If evidence emerges in the defamation case that Justice Hlophe had lied, he surely must be done for. Unfortunately, the whole sorry saga is extremely damaging to the credibility of the judiciary. The fact that there is even a vague suspicion out there that the Judge President of the Cape High Court is economical with the truth and perhaps even corrupt, is a disaster for all of us who believe in the Rule of Law and the power of Courts to do good.

The JSC should have dealt with this matter far more decisively and quickly than it did. But because it is such an unwieldy body and because it is highly politicised, it is perhaps not capable of dealing with complaints where the facts are not yet proven. That is why there is an urgent need for Parliament to pass the draft legislation providing for disciplinary action against judges. The establishment of a judge-driven complaints process against judges will allow for a far speedier and a more legitimate way of dealing with unhappy situations like the Hlophe matter.

Although the Sunday Independent reports today that some judges are upset about some aspects of the new Bill that would potentially limit retired judges from doing other work, the Bill is mostly sound and I believe with some small amendments it would find support amongst most judges.

New ambasssador for Zimbabwe?

The Cape Times report today (subscription required):

The Judicial Services Commission (JSC) convenes today to deal with the thorny matter of impeachment proceedings brought against Cape Judge President John Hlophe, who is accused of "gross incompetence" by a top city advocate.

Peter Hazell, SC, asked the JSC to investigate a string of accusations against Judge Hlophe last August. At its last meeting, the commission decided to give Judge Hlophe the right to reply before the matter could be finalised.

One of the complaints levelled against Judge Hlophe is that he was in contempt of court because of his public statements that he "couldn't care less" about the findings of the Supreme Court of Appeal in the case between the health minister and the pharmaceutical companies.

Judge Hlope's response, unfortunately, is not very encouraging. "With respect," he said" "I do not think the JSC has criminal jurisdiction over judges." Which rather misses the point, which is that judges are constitutionally bound not to act in a manner that could be construed as grossly incompetent or as constituting gross misconduct.

I am glad I am not on the JSC and I am sure glad I am not the Chief Justice who will have to try and sort out this mess. It seems like a no-win situation. Judge Hlophe will not be impeached by the JSC because his missteps "only" show stupidity and arrogance on his side. If these were impeachable offences many a judge would have been out of a job. Unfortunately Judge Hlophe's reputation will be further tarnished by the process and respect for the judiciary will be further compromised.

At the same time, the reactionary lawyers and judges who predicted (and was hoping for) his downfall from the start of his tenure, will be able to point to Judge Hlophe when they moan about the perils of transformation. He has become the worst kind of poster child for transformation because he has misused arguments about racism to help excuse his unwise behaviour.

The best possible outcome would be if Judge Hlophe could be persuaded to step down. Don't we need a new ambassador in Zimbabwe or Iraq?

Judge Hlophe's worst nightmare?

The Department of Justice this week tabled a Bill that would amend the Judicial Services Commission Act to deal with the Judge President Hlophe kind of case. Section 177 of the Constitution provides for the removal of a judge because of incapacity, gross incompetence and gross misconduct.

But when a complaint was lodged against Judge President Hlophe, the Judicial Services Commission (JSC) decided that there was insufficient evidence to refer the matter to the National Assembly for impeachment. No Judge had ever been impeached in South Africa since 1910.

The problem with the Hlophe matter was two-fold. First, a majority of members on the JSC who are not judges decided to believe Judge Hlophe for (what appears if one has to judge from news reports) political reasons. Second, those who thought that there was a problem with the conduct of judge Hlophe were hamstrung because there was no legal process in place to launch a proper investigation that would uncover the truth.

The amendments - apparently carrying the approval of the judicial leadership - will now provide for a process to deal with both impeachable and non-impeachable offences by judges.

Most importantly, according to the draft Bill, the initial investigation into misconduct will be conducted by a Committee comprising of the Chief justice and three other judges. No politicians will be involved in the process, thus safeguarding the independence of the judiciary.

In serious cases a three person tribunal - of which two has to be judges – will hear a case and make a recommendation to the JCS.

The amendments is clear that that no action could be taken or regulations gazetted without the consent of the Chief Justice because wherever the Minister is proposed to be involved he or she has to act “in consultation with” the Chief justice.

These amendments are absolutely crucial to establish a credible system to hold judges to account who does not comply to the basic minimum standards one would expect from a judge. It makes a clear distinction between impeachable offences (taking money, say and then doing favours for those whom one has taken the money from –something Judge Hlophe have been charged with) and non-impeachable offences (like drunken driving, say).

Let’s hope the Minister gets her act together and manages to pass the legislation as soon as possible.

Hlophe case "unprecedented"

Robin Palmer, Professor at the University of KwaZulu-Natal says in a report in the Sunday Argus that the Hlophe/Desai case is unprecedented in South Africa's legal history. A situation where a judge was facing defamation claims and the judge-president could be called to testify and possibly face hostile cross-examination was "highly undesirable".

Meanwhile Sheila Camerer of the DA called for the Judicial Service Commission to reopen its investigation into Hlophe.

The problem is, of course, that the JSC is hopelessly divided on this matter. The Hansie Cronje effect has come in to play, so some members of the JSC will probably be loyal to Justice Hlope even if he admits that he only gave permission for Justife Desai to be sued because he received money from the Oasis group.

There is an urgent need for the Minister of Justice - or somebody at the Ministery who actually does anything - to finalise the Bill that will set up a system to deal with disciplinary matters against judges. What is required is the establishment of a sub-committee of the JSC, composed at the very least, of a majority of senior judges and chaired by the Chief Justice, to look into allegations of conflicts of interest and corruption against judges.

It would be untenable for such a committee to be controlled by civillians with overt political agendas. The indepenence of the judiciary requires that judges should be in control of their own disciplinary process. But one or two civillians could be added to ensure that the body does not become a toothless club protecting colleagues who should be brought to book.

This sub-committee should deal with judges on the basis of a code of conduct setting out what is required of a judge in terms of ethics and behaviour and should allow for reccommendations that range from suspension and docking of pay to full impeachment.

R500 000 small change for Hlophe?

In April last year Judge President John Hlophe acknowledged that he had received out-of-pocket expenses from the Oasis group, "which were not excessive and has always been open and transparent". He also said that he had permission from the Minister of Justice Dullah Omar to do the work.

Now it emerge in court papers that he had received nearly R500 000 from the Oasis group, starting in December 2002. Omar was Minister of Justice until the middle of 1999. Hlophe on several occasions declined to grant permission to Oasis to sue Judge Desai but after payments of almost R500 000, he suddely gave the permission.

Two blidingly obvious conclusions can be drawn form this:

• Judge Hlophe lied in his innitial statement when he said that Oasis was only paying him for out of pocket expenses - it is surely not possible to incur out of pocket expenses of R500 000 in three years? So the Judge President has been caught in a lie. He might have changed his story before the JSC, but the innitial statement was clearly untrue.
• It is difficult to see how Dullah Omar could have given permission for this because he was not the Minister anymore in 2002 - unless Hlophe started doing work for Oasis in 1999 or ealier but only started receiving payments when Oasis wanted to sue Judge Siras Desai. So, either he lied about getting permission or he must admit that he only started receiving money from Oasis when they wanted a favour from him.

From this it is difficult not to conclude that Judge Hlophe's action were both dishonest and corrupt. Maybe he has a good excuse, but judges must not only be beyond reproach but must make sure their behaviour does not even hint at impropriety. It is a scandal that he is still on the bench. He should be impeached.

Unprincipled JSC?

It is reported this afternoon that the Judicial Services Commission has cleared Judge President John Hlophe, of any wrongdoing for receiving payment from the Oasis group of companies for services rendered. The SABC news reports:

In a statement, the commission said there was no evidence to contradict Hlophe's assertion that he had received oral permission from Dullah Omar, the late minister of justice, to receive a retainer from the company.

This is, to say the least, a perplexing outcome that smells of politics and not of principle. I have a few questions for those members of the JSC who endorsed this strange outcome.

• On 1 April 2006 Judge Hlophe told Independent newspapers: "I am not on a retainer from Oasis or anybody. I am not so stupid as to receive a retainer from any party." Hlophe later admitted to receiving money and the SABC report seems to suggest that the JSC has accepted that this was a retainer. Was he just making an April fools joke or was Judge Hlophe lying when he made his initial statement?
• Was there not perhaps an untenable clash of interest when Judge Hlophe – on a retainer from Oasis – gave permission to the same Oasis to sue fellow Judge Siraj Desai? If so, does this bother the JSC or do they not have any ethical standards?
• It is reported that Hlophe admiited to receiving money from Oasis from 2000 to 2005. Hlophe claims that Dullah Omar gave permission for this. But Dullah Omar stopped being the Minister of Justice in May 1999. How on earth can the JSC believe that permission was given at such an early stage for payments which only started a year later? Do they believe in the tooth fairy as well?

This outcome is deeply unsatisfactory. Some brothers and sisters among us will of course say that my criticism is proof of racism – that I assume all black people are corrupt and that Judge Hlophe is the victim of a conspiracy. If we do not believe his story it is because we do not want to believe black people - ever.

I have considered this possibility but I hope I am motivated not by such base assunptions but by concern for the integrity of the judicial system. A system that was so fatally tainted in the apartheid era and that we are trying so hard to rehabilitate.

I will fess up to racism if, and only if, anyone can provide me with satisfactory answers to the above questions. What is required, really, is for the JSC to present us with ALL the facts: from the date on which Justice Hlophe first received money from Oasis; the basis for this payment; how much was paid; when did it stop? If this information is not provided, a cloud will hkeep on hanging over Justice Hlophe and now also over the JSC.

In the absence of a full explanation by the JSC, it would be hard not to suspect that racial solidarity won out over principle and common sense at the JSC. In my eyes they have shot themselves in the foot big time. Only full disclosure can begin to restore their credibility. Today is a dark day for the judicial system in South Africa.

PS: See also my previous post on Justice Hlophe which seems a bit optimistic now.