Sunday, June 7, 2009

Judge Hlophe seeks to destroy from within

During the Spanish Civil War, General Emilio Mola was asked which of his four army columns would capture Madrid. He replied: “The Fifth Column.” This was a reference to citizens inside the capital loyal to Franco. Thus the term “fifth columnist” entered the political lexicon — a reference to members of the community with a loyalty to the state, or a constitutional body, but determined to strike a blow, perhaps a crippling one, against it.
I’m beginning to get the feeling that Western Cape Judge President John Hlophe and his outriders have become home-grown vandalisers of our constitution. If I’m wrong, then the imputation is even more serious. Because according to Judge Hlophe, the entire Constitutional Court, the president of the Supreme Court of Appeal (SCA) and the leadership of the Judicial Service Commission (JSC) are, variously, “liars”, “biased” and serial violators of the fundamental rights they have sworn to uphold.
Since May 2008, Judge Hlophe and his supporters have used whatever weaponry available — from legal bazookas to rhetorical flame-throwers — to avoid or delay facing charges of gross misconduct levelled by 13 permanent and acting Constitutional Court judges. The court said he had approached two of them in an attempt to influence a pending judgment relating to the Jacob Zuma search-and-seizure warrants case.
They referred the complaint to the JSC — the constitutional body that deals with judicial misconduct. Judge Hlophe’s lawyer claimed the Constitutional Court, by issuing a media release about its planned action without advising him first, had “acted with unseemly haste ... to crucify him in public”. Ironically, in a recent interview, Judge Hlophe indicated a wish to serve on the same court.
And that was just the start — the latest round was a split-court decision on Monday in South Gauteng which found that by starting proceedings while Judge Hlophe was ill in April, the JSC had violated his rights. While Judge Hlophe and the JSC search for a date on which the proceedings can recommence, perhaps we should pause to consider the damage.
According to Anthea Jeffery of the Institute of Race Relations, at various stages over the past year Judge Hlophe has accused Chief Justice Pius Langa and his deputy, Dikgang Moseneke, of lying and urged the JSC to investigate them for gross misconduct, since both might have been politically motivated to back “a trumped-up complaint”.
In a recent attack, two members of the JSC — its acting chairman and president of the SCA, Judge Lex Mpati, and veteran human rights lawyer George Bizos — were accused by the “Justice for Hlophe Alliance” of “the most nefarious and despicable acts their minds could conjure up”.
And if that was not serious enough, Judge Hlophe complained in a case he ultimately lost before the SCA in March that basically every one of his constitutional rights — from dignity to equality, right down to the presumption of innocence — had been violated by the Constitutional Court. The ordinary citizen must wonder: if Judge Hlophe is correct, and if this is how the highest court of the land treats a member of the judiciary, what hope do I have of a fair trial?
Alongside all the other taxpayer-funded trials and applications Judge Hlophe has embarked upon, his attempt to appeal this judgment to the Constitutional Court, the very body that launched the complaint against him in the first place, is bizarre.
Since the bulk of the court would have to recuse itself, Judge Hlophe simply suggests that its members be replaced by a sort of tribunal constituted by the minister of justice. This has been dismissed by constitutional law expert, Professor Pierre de Vos, as “daft and dangerous” in terms of the separation of powers doctrine and the principle of judicial independence.
Judge Hlophe has his rights and they are obviously entitled to protection. But Justice Louis Brandeis once observed that the “lawyer has a duty to the case as well as to the client”. When you take a wrecking ball to every carefully constructed constitutional edifice, with the scorched earth tactics employed by the Judge Hlophe camp, compromise becomes much harder. If the courts and their disciplinary body climb down now, then the stain of Judge Hlophe’s charges against them and the administration of justice will remain.
Last July, the ANC warned judges not to “undermine the integrity of the courts”. The new government needs to remember that warning when, later this year, it considers replacements for the Constitutional Court. It would do well to remove from consideration one of the chief underminers.

*published in the Sunday Times 7 June 2009


Six sigma said...
This comment has been removed by the author.
Six sigma said...

Hlophe is definitely not constitutional court material!!

LUNDI said...

I wish white people could just accept that South Africa has the majority of blacks and accept that the president of he country is black and understand that they are not superior to any race and they are not our yardstick of what is good, proper and acceptable. Its over white folk, u will never run this country again, accept it!

charlesscheepers said...

Hlophe is making such a spectacle that we actually believe he is the reason for the cracks in the judiciary. The fact is that corruption in the judiciary is more wide-spread than people care to believe. Every single judge in on the complaint against Hlophe has a serious complaint of gross negligence, gross incompetence and conspiracy in regards to the case S C Becker and others (otherwise known as the Waterkloof-four). They have been unable to refute the allegations and just like Hlophe they are running away from their accuser. They have no right to judge Hlophe because they are unscrupulous cowards as well.

Nobody else in this country can criticise Hlophe without pointing the finger at every other CC judge too. These are facts known by a lot of high-placed individuals (probably including Tony Leon) and still they act as if it does not exist. The Hlophe debacle is trying to show us that there are big problems in the judiciary and we are working tirelessly to ignore it. These corrupt judges have also given the vultures the keys to change the judiciary to their personal taste because at this stage any judge can do better than these clowns.

Mr. Leon may I suggest that you further investigate the mentioned case, but be aware that it is not for the faint hearted. Maybe you already know and like all the other “righteous” individuals you are steering clear of the controversial subjects. The problem is that these controversial subjects cause far more damage than Hlophe and his antics ever can. If these judges were “honourable” they would face their accuser and address the charges against them.