The Judicial Service Commission (JSC) has been lashed over its second ”failed” attempt to explain why Cape Judge President John Hlophe will not be impeached.
The JSC issued a second statement after pressure from the legal fraternity to provide clarity on the reasons for finding there was no ”prima facie evidence of gross misconduct” against Hlophe.
The statement attempts to elaborate on the JSC’s findings on the four main charges against Hlophe.
But Hlophe’s main detractor, senior advocate Peter Hazell, and Centre for Constitutional Rights director Paul Hoffman have independently hit out at the JSC, accusing the body of covering up what they believe to be the main charge against Hlophe.
The JSC says the ”most serious complaint”, which could, if proved, ”have constituted gross misconduct”, was that Hlophe, while on a retainer from the Oasis Group, allowed the group to sue Judge Siraj Desai.
Hlophe has maintained that former justice minister, the late Dullah Omar, granted him oral permission to be remunerated by Oasis. The justice ministry could not confirm or deny that permission had indeed been granted. ”There was, therefore, no evidence of the absence of consent,” the JSC says.
However, the JSC unanimously decided that Hlophe acted ”inappropriately” and should have refrained from making the decision himself.
The JSC did convey its concerns to Hlophe and, according to the statement, the absence of a formal inquiry should not be construed as an exoneration of the judge president.
Hazell and Hoffman are not convinced that the Oasis-Desai matter is the most serious complaint against Hlophe. Hoffman says it is with regard to the complaint of racism that ”the integrity of the judge president has been squarely called into question”.
Hazell calls it ”the Big Mother of them all”.
It is alleged that in 2005 Hlophecalled lawyer Joshua Greeff a ”piece of white shit who is not fit to walk in the corridors of the high court”. Hlophe then allegedly said that Greeff should ”go back to Holland”.
Hlophe has denied this, but both Greeff and advocate Dirk Uijs confirmed the incident in affidavits that were, says Hazell, readily available to the JSC.
Greeff and Hazell say the incident also took place in the presence of Judge Tandaswa Ndita, then an acting judge, who had complained to Hlophe about statements made by Greeff on radio.
”Her version of the event has never been made public, nor has that of the prosecutor who was present. No reference to either of them is made in the latest press release,” Hoffman says in a statement.
”On the other hand, Uijs’s affidavit confirming his version of the incident stands. The fact that both he and Greeff have no stomach for pursuing the complaint is legally irrelevant. Quite obviously both wish to continue to earn a living in the court over which Judge Hlophe presides and their reluctance to stir up trouble over an incident long since swept under the JSC’s carpet is perhaps understandable,” says Hoffman.
He says it is not the incident itself that creates an ”impeachment-worthy charge”, but the fact that Hlophe might have been ”mendacious” when he denied the incident on television.
Hazell agrees, saying Uijs and Greeff are now merely the ”prosecution” witnesses.
”Since when has what a witness wants for himself been relevant to whether or not a public inquiry should proceed? Looking at the big picture, metaphorically, surely the entire dog should not be wagged by two itinerant ‘fleas’ at the tip of its tail, merely because — ignoring the danger to their dog — they do not themselves insist upon the removal of a third one,” says Hazell.
Hoffman argues that both JSC media statements suggest that the majority of the commission’s members have avoided or ”perhaps failed to grasp the enormity” of this charge. ”Subsequent developments have put [Hlophe] in a catch-22 situation. If his denial of racism against Greeff is genuine, the affidavit by Uijs is perjured and Uijs is guilty of a criminal offence.
”Why then did Judge Hlophe allow the minister of justice to appoint Uijs to serve as an acting judge in his division of the high court? If one accepts the truth of the denial by him that the Greeff incident took place, he has stood by and allowed the appointment of a perjurious senior advocate to his Bench.
”If the truth of his denial is not accepted, then there is reason to suppose that the judge president did not tell the truth when he publicly denied that he had made the racist remarks. Either way, the inference is inescapable that he is not, as Justice [Johann] Kriegler has forcefully argued, a fit and proper person to be a judge, let alone a judge president.”
Hoffman says these issues present sufficient grounds for the JSC to hold a formal hearing. ”Judge Hlophe deserves his day in court.”