The Judicial Service Commission (JSC) will meet in Johannesburg on Saturday to consider what further action, if any, will be taken about complaints against Cape Judge President John Hlophe, said Chief Justice Pius Langa.
Hlophe reportedly responded last month to questions put to him by the JSC about his relationship with the Oasis investment group.
Earlier this year, Oasis sued Judge Siraj Desai for alleged defamation over remarks he made at a public meeting.
Hlophe, who was a paid consultant for Oasis, controversially gave the group the permission it needed to sue Desai.
However, Desai argued that Hlophe did not have the authority to decide on the prosecution as he was compromised because of his relationship with Oasis.
Oasis abandoned its claim in May, when it emerged that Hlophe would have to testify about his decision if the case went ahead.
No evidence of wrongdoing
Last year, the JSC found no evidence of wrongdoing by Hlophe in receiving the Oasis payments, but it was asked to more fully investigate Hlophe’s conduct by Cape Town advocate Peter Hazell.
In July, the Democratic Alliance (DA) asked Justice Minister Brigitte Mabandla what was being done to finalise the JSC inquiry into the allegations against Hlophe.
Complaints which still had to be finalised included allegations of conduct unbecoming a judge, contempt of court, bringing the administration of justice into disrepute and gross incompetence, the DA said.
The JSC’s most recent questions to Hlophe arose from documentation from the court proceedings in the Oasis case.
The JSC is the only body that may recommend the impeachment of a judge. Should the commission decide to do so, this will be the first time in South African history.
In a statement on Friday, Langa said — in his capacity as chairperson of the JSC — that it was ”inappropriate” for members of the JSC to comment on the merits of the matter or speculate on the outcome of deliberations while the matter was still under consideration.
”Accordingly, no further statements will be made to the media regarding the inquiry until the JSC has had an opportunity of meeting and deliberating on the further conduct of the matter,” he said.
Burden of proof
Meanwhile, two senior advocates and four other legal professionals told the Mail & Guardian that Hlophe may be vulnerable to prosecution under the Prevention and Combating of Corrupt Activities Act.
The Act, they suggested, contains language that could be interpreted as placing on Hlophe the burden of demonstrating that he did not favour Oasis in litigation at the Cape High Court while he was on its payroll.
The legislation, which came into force in April 2004, when Hlophe was still receiving a monthly stipend from Oasis, significantly tightens anti-corruption laws and clarifies their application to judicial officers.
It provides that a judge who accepts ”any gratification for the benefit of himself in order to act personally in a manner that amounts to the biased exercise of any powers [or] amounts to the abuse of a position of authority or the violation of a legal duty or a set of rules is guilty of the offence of corrupt activities relating to judicial officers” is guilty of an offence. The maximum sentence provided for is life imprisonment.
Crucially, in certain circumstances the Act shifts the burden of proof to the recipient of the money, who in order to escape conviction must show that his or her conduct was not influenced by the benefit, legal experts said.
By Hlophe’s own admission he received monthly payments, first of R10 000 and later of R12 500, from Oasis as a trustee of an Oasis-administered retirement fund. The payments totalled R467 000 over a period of more than three years. – Sapa