Justice confused: that is the sorry state of the Judicial Service Commission's (JSC's) conduct tribunal that is investigating a complaint against Western Cape Judge President John Hlophe – a saga that has been dragging on for five years. Justice confused is likely to turn into justice delayed and, as we know, justice delayed too long is justice denied. Five years is long enough, so it would behove the JSC's tribunal to get on speedily with this matter.
Unfortunately, the events of this past week show every sign of causing further complications and thus further delay. This is particularly unfortunate at a time when the commission is about to begin a new round of interviews for judicial appointments – already a controversial process because of who has and who has not been appointed, and because of the varying ways in which the JSC's selection panel has sometimes dealt with different interviewees.
The ongoing issues raised by such procedures were discussed at a recent workshop, on which we report in this edition; it showed that stakeholders are very far from consensus on the selection criteria that need to be used. But the longer it takes to get it all sorted out, and to procure a process that satisfies all those involved, the greater the chance becomes of public confidence in the judiciary being further eroded.
That would be tragic because the judiciary is one of the key pillars of our constitutional democracy – in fact, sometimes it looks as though it's the only pillar still standing, and to see it being eaten away from within is particularly disturbing.
Early on, when this mess began, the case against Hlophe looked straightforward. A complaining letter was sent to the JSC, in the names of the full complement of Constitutional Court judges, accusing Hlophe of trying to meddle in cases to do with Jacob Zuma, not yet president, that were then before that court.
To the public, it surely seemed that a case pitting the full Bench of the Constitutional Court against the already controversial, perhaps even compromised, Western Cape judge president could only end in victory for the former forces. But it is now not looking so certain. The whole thing is starting to show signs of being a murky mess that it will be very hard to tidy up.
The two Constitutional Court justices that Hlophe is accused of trying to influence have distanced themselves from the process, effectively saying not in our name, and are now appealing the tribunal's decision to go ahead with the process. Then there is the fact that several judges of the current Constitutional Court, including Chief Justice Mogoeng Mogoeng, were not in office at the time of the original complaint against Hlophe. And if the Hlophe legal team has its way, Deputy Chief Justice Dikgang Moseneke will become the judicial equivalent of prime evil. All of this, of course, is just unseemly. Conspiracy claims will be muttered and political players drawn into the morass. It will get dirty before it gets better. Is this what we need? For when the country's top judges of our land are divided, then the very credibility of our judicial system is at stake.