Judging the Judges
'Just because you're paranoid, it doesn't mean they aren't out to get you'. Is it possible that there is an anti-transformation conspiracy out to get the Judge President of the Western Cape, Justice John Hlophe?
Certainly the judge has been dogged by controversy.
Recently he was accused of impugning the good reputation and professionalism of Justice Winston Nagan, whom Hlophe blamed for a delayed judgement. Nagan is a Professor of Law at the University of Florida and director of the Institute for Human Rights, Peace and Development. Nagan has initiated a R6 million lawsuit against his alleged detractor. Other colleagues whom Hlophe is said to have demeaned are Justices Greeff and Thring, the former on the basis of his colour, the latter of his competence.
The Nagan case rests on whether or not the understanding was that he or Nagan should write the judgement, possibly a verbal agreement between colleagues. It's the word of one judge against that of another. The Greef and Thring cases turn on whether or not Hlophe said certain unpleasant things, and the context and tone in which he is alleged to have said them. Which of the judges does one believe?
Rather more serious allegations were made by the Constitutional Court bench that Hlophe made improper attempts to influence Justices Chris Jafta and Bess Nkabinde in their judgements of cases relating to the charges against Jacob Zuma. There seems to have been some shifting of ground on the part of the two complainants, some suggest as a result of political pressure on them. Again, whom should we believe?
In 2006 there was the matter of Hlophe's work for the Oasis investment company for which he was paid 'consultancy fees' of R10,000 per month. Hlophe claimed he had obtained verbal permission to do this work from the the late Minister of Justice Dullah Omar. Again, the matter rests on whether something was said or not, and the only other witness to the utterance is dead. However there is less argument about the facts in another episode of the same story – that Justice Hlophe, while drawing his 'consultancy fees' from Oasis, gave the same investment company permission to sue his colleague Justice Siraj Desai.
Recently the Judicial Services Commission (JSC) effectively ducked the issue of the alleged improper influencing of Justices Jafta and Nkabinde by dropping charges, though a minority of the members was clearly unhappy with this. It seems therefore that we will never know which of our judges were being 'economical with the truth'.
The already murky waters could now become impossibly muddied by the no doubt well-intentioned but clumsy intervention of retired judge Johann Kriegler. On behalf of his organisation Freedom Under Law, he has mounted a legal challenge to the JSC to force it to address the issue, to do what Kriegler believes to be its job. This move sparked the resignation of Cyril Ramaphosa Advocate Dumisa Ntsebeza, and acting Judge Kgomotso Moroka from the organisation, creating the fatal impression that racial politics trump law.
How can we ever know the true worth of our judges when the institution tasked with guaranteeing their integrity (the JSC) has failed us by burying rather than unearthing the truth? The handling of the Hlophe affair is as destabilising as it is disturbing.
