Friday, October 05, 2007

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!"


Henry Maigurira said...

Principles of fairness and justice are tested every situations were public officials are implicated or where suspicions of improper conduct arise. Evidence is proof that guide and leaves precedent for future decisions, lest not take South African hard earned freedom for granted and individuals whom fought for it. Judge Hlope is a man of honour and intergrity, JSC must deligently exercise its function and duties sensitively and open hearted to the matter and any decision made to discredit the judge president must not be allowed to stand as I personaly see no wrong doing in benefiting from proceeds of a legal business and constitutionaly accepted conduct.

Henry Maigurira said...

I leave no mark for hatred in view regarding treatment of black individuals who occupy high offices when it comes to public scrutiny. what does ubunthu mean for the post colonial South Africa? It is an encompassing definition of treatmnent of everyday realities that face the changing and evolving needs of the political and social needs of the South African people. The 1994 constitution was a break through transient legal device that sought to guide and liberalise the future of the African people subdued of their past freedom. ANC visioned a nation of freedom and prosperity within the realm of a founding characters of democratic patronage. Now to say that our leaders who are masters of our destiny are less robust about matters of national importance and paroxysms of development is self crucification for the very same freedom, democracy and liberal economic independence that belongs tho the broader understanding of the Ubunthu doctrine. What lessons can we draw from the Judge Hlope' s created dilema is that institutional organisation blends well with moral rectitude of our impression and what we seek to achieve at the end of day. The principles of seperation of power and are clear about non state interference in judicial decisions and consequently the rule of law demanding ethics and intergrity in the mannner and reproach of court decisions in handling cases. Notably, I strongly urge the Ginwala commission to pursue their task with honour and intergrity for the purposes of credebility on national security. Jackie Selebi has maintained his hands are clean! With greatest respect Mr President Thabo Mbeki is a man of sound judgement and equally competitive on matters of national importance we must trust and have faith in his abilities before and presently on this whole matter. We cannot afford to be drawn to senseless rhetorics and primitive naunces of self serving and cowardly forces of destruction that seek to destroy national unity and hard earned freedom.

Africannabis said...

Ok OK OK - this is all very legal for my lay mind...

but hopefully the gardener will keep the plight of the soon-to-be-evicted close to the heart that once knew the earth.

becuase damn, this legal stuff - legally earning two salaries like the minister of housing - who with her 2nd job Thubelisha - are going to evict people who for the past 14 years have lived there...

The people of Joe Slovo - are more disadvantaged than Hlope or Sisulu, yet these two control their fate with a stroke of a pen and a pronouncement.

I hope there is still blood in their veins, that the double incomes haven't made the blood bad which could taint decisions that genuinely do affect people with lives.

Anonymous said...

Henry, what you are saying makes no sense whatsoever. Moreover, your averment that Hlophe JP is a man of honour and integrity has not been tested as you suggest - the JSC decided not to impeach and have him testify so that he could answer to cross-examination. It is not really receiving money from a legal enterprize that put him in the spot in the first place, but his lying about whether he had the Minister's consent to do so, and then to grant the very legal company he is involved in leave to summons a fellow judge in a civil action! Many Senior Counsel have now adopted a motion of distrust in Hlophe, urging him to resign because littigants and counsel have lost trust in him. This is not the time for us to raise things like ubuntu and the past struggle because, if that is all that put Hlophe there in the first place (and now keeps him there) then surely the entire national and international society would have lost faith in Hlophe and the JSC, as well as in the independence of the Judiciary. Come Judge Hlophe - do the honourable thing?!

Anonymous said...

The saddest thing about the Hlope/JSC affair is that no black judge or top legal eagle has had the courage to publicly criticise his/her black brother for his obvious dubious ethical standards. How I long for the day when people will be judged by their actions and be held accountable for them, without having to be propped up colleagues of colour. Shame on all the black laweyers who see loyalty to skin colour as their guiding light. Some independent, colourless, thought and action would be so refreshing.

Wessel said...

Marian, I agree. During the apartheid years there were many lawyers and judges that spoke out about injustice, not just black ones, but white ones too. Why can black lawyers and judges not speak out now. Sies!

12331432! said...

Anonymous i competely agree with you, as a judge you should do the respectable and honourable thing which in his case would be to step down. when will our Judicial system function solely on their qualifications and be held accountable with out having their race as a grace card? henry this does not concern ubuntu but rather a direct disregard for the law