The Judicial Service Commission (JSC) was reportedly split along racial lines as it deliberated on what to do about the most recent complaint against Cape Town Judge President John Hlophe.
The full 23-member JSC panel met in a conference room at OR Tambo International Airport to discuss the matter in a meeting described as protracted and heated.
At issue was Hlophe’s retainer from Oasis, a Cape Town-based financial services company, as well as impeachment charges brought by an angry advocate. The JSC ultimately cleared Hlophe of conflict of interest charges for a retainer payment he receives from Oasis. The JSC said it could not contest his view that he had received permission from the late justice minister Dullah Omar to receive the payment.
”After consideration of the evidence at present available to it, the commission decided that there is no evidence to contradict Judge President Hlophe’s assertion that he had received oral permission from the late minister of justice Dullah Omar. In the circumstances, the commission decided that no useful purpose would be served in pursuing the matter any further at this stage,” the statement read.
According to inside sources, the JSC was split into two camps, with one group pushing very hard for Hlophe’s exoneration while another ”faction”, apparently led by George Bizos, maintained that there should be a thorough public investigation into the matter before a finding could be made.
The Mail & Guardian was told that the ”Bizos group” argued strongly that the public was entitled to know how the JSC came to its findings.
Hlophe’s time on the Cape Town bench has been controversial. He has had numerous racial clashes, including one with his deputy, Janet Traverso, and he has been implicated in two conflict-of-interest cases.
”Unfortunately we heard that the JSC was pretty divided and mainly along racial lines,” a senior Johannesburg lawyer, who wants to remain anonymous, said this week.
The JSC’s decision has stunned members of the legal fraternity in Cape Town because it appears that the ruling relied solely on Hlophe’s testimony, which he apparently made verbally while not under oath. The Oasis Group allegedly refused to comply with the JSC’s request that it provide records of its payments to Hlophe on the grounds that the JSC did not have the power to compel it to do so.
”All these rumours and stories about what happens behind closed doors at the JSC show that the system is fatally flawed. The public can’t trust it because nobody really knows what happens,” said advocate Norman Arendse, past chairperson of the General Council of the Bar.
”The irony is that we have a wonderful court system, which is open to the public. We don’t know what evidence was put before the JSC. Was it pieces of paper? Was it sworn statements? We just don’t know and therefore, quite rightly, it’s called a whitewash or a blackwash — whatever takes your fancy. It’s terrible and it shows that a different set of rules count for the public and for judges. This process shows that we are not all equal in front of the law,” Arendse said this week.
The M&G asked three judges, two MPs and two advocates whether they knew of any precedents of oral permission being granted, and they did not.
Steve Swart, of the African Christian Democratic Party, laid the complaint with the JSC against Hlophe, claiming a potential conflict of interest after it was revealed that Hlophe was on Oasis’s payroll.
Under Hlophe the Cape Bench has had to make a high court ruling on business dealings of Oasis and will soon have to preside over continuing litigation concerning this company. Judge Siraj Desai, a high court judge and colleague of Hlophe, is being sued by Oasis. A high court judge cannot simply be sued; one needs permission to do so, and Hlophe granted this permission.
Hlophe claimed he was merely a trustee of the Oasis Group and that the funds paid to him were for his petrol expenses. Hlophe, like all other judges, has access to a free car and petrol for business and private use.
Four months ago a senior member of the Cape Town Bar, Peter Hazell, also instituted impeachment proceedings against Hlophe for ”contempt of court, bringing the administration of justice into disrepute, conduct unbecoming of a judge and gross incompetence”.
He requested that the JSC investigate a variety of complaints against Hlophe. In a public statement the JSC responded to the impeachment last week, saying it was still waiting for Hlophe to respond to the JSC’s requests for information related to the charges.
A senior judge who asked to remain anonymous said this week: ”The JSC doesn’t have the legal teeth to do anything about Hlophe. The man is an embarrassment to the institution and he’s a racist. He acts with impunity because he knows that his skin colour protects him. If a white judge has said and done the things Hlophe has done, he would have been out on his ear before the sun rises the next day.”
When asked about the move to impeach him, Hlophe said this week that he had ”no comment”.
Who sits on the JSC?
The Judicial Service Commission (JSC) has 23 members, but nobody was willing to reveal who sits on it. The Mail & Guardian approached JSC spokesperson Inez Greenstein, but she refused to divulge the full member list.
However, the M&G has established that the following people are among its members:
Chairperson Judge President Pius Langa
Vice-chairperson Judge Craig Howie
Advocate Marumo Moerane
Advocate Seth Nthai
Advocate George Bizos
Advocate Milton Seligson
Advocate Julian von Klemperer