Hlophe announcement casts a dark cloud over South Africa's judiciary
The Judicial Service Commission's decision (see here) to end its inquiry into the conduct of Cape Judge President John Hlophe flies in the face of its earlier commitment to investigate thoroughly the gravely serious allegations levelled at Judge Hlophe by two Constitutional Court judges. Indeed, this announcement casts a dark cloud over South Africa's entire judiciary. It marks a departure from post-Apartheid South Africa's strong tradition of respect for the rule of law and judicial independence. It reflects both the outcome of the ANC's attainment of a majority on the Judicial Service Commission, and the lengths to which the ANC will go to repay political favours -- even to the detriment and subversion of our democracy.
What we have seen in recent months can only be termed a carefully calculated series of events, orchestrated by the ANC, its alliance partners, and like-minded groups. A two-pronged political programme was initiated, in one part under the moniker of the ‘Justice for Hlophe Alliance', which aimed to rouse up populist support for Judge Hlophe and, at every possible opportunity, radicalise and racialise the debate. The other half of the programme of action was carried out by garnering an ANC majority on the Judicial Service Commission. This process commenced on June 8th, when Justice Jeff Radebe suspended hearings for new judges.
A month later, the ANC used underhanded tactics to replace the sole opposition representative on the JSC from the National Council of Provinces, Darryl Worth, with an ANC nominee. Then President Zuma installed four new members onto the JSC, including the controversial president of the Black Lawyers' Association, Andiswa Ndoni, who has gone as far as to publically profess Judge Hlophe's innocence.
With a majority of members on the JSC and its disciplinary committee now either appointees of President Zuma, or ANC politicians, the new-look JSC immediately got to work on the Hlophe case, setting up a three person sub-committee to review the evidence against Judge Hlophe, instead of proceeding with the hearings as had been stipulated by the South Gauteng High Court's ruling in early June.
Without proceeding to a full hearing, and despite acknowledging that Judge Hlophe's actions had been "unwise and imprudent", the JSC has now pronounced on Judge Hlophe's guilt in the most dubious of circumstances.
The events at the Judicial Service Commission preceding today's decision will inevitably draw parallels with those that led up to the National Prosecuting Authority's decision to drop charges against President Zuma. Most notably, in both cases the ANC appears to have undertaken a concerted political programme to alter the political composition of the decision-making institution.
Just as the JSC was overrun by ANC-friendly commissioners in the run-up to the dropping of charges against Judge Hlophe, so the National Prosecuting Authority's leadership was overthrown in the run-up to the Zuma decision, with National Director of Public Prosecutions Vusi Pikoli being dismissed from his post, despite having his name cleared by the Ginwala Commission of Inquiry, and Mokotedi Mpshe replacing him.
This is how the ANC operates. When it can't win, it changes the rules of the game. And when its loyal cadres face allegations of wrongdoing, it will go to extraordinary lengths to protect them -- even at the expense of the rule of law. Even beyond the dropping of charges against Hlophe and Zuma, there is a generic pattern that has emerged within the ANC, when its politicians are confronted with serious allegations.
The first step is usually to give off the illusion of action -- by undertaking some kind of preliminary investigation. This investigation then usually documents a set of problems. To make the problems go away, the ANC then manipulates the entire process, changes the rules, or bargains for some kind of settlement -- usually a redeployment, or a temporary (paid) leave of absence. We now have an endless stream of crooked ANC cadres across our public service -- from departmental directors-general to hospital managers and police commissioners.
The JSC's decision, then, reaches into the heart of what is wrong with the body politic in South Africa today. It is indicative of the worst kind of breach of public confidence, and the worst kind of insincerity towards the founding values of our constitution. It leaves people with less belief in politics, and politicians less believable.
What today's decision cannot be allowed to do is alter the fact that Judge Hlophe's character and reputation remain fundamentally tainted. The fact that this process has been terminated certainly does nothing to distance Judge Hlophe from the array of dubious incidents in his past, most notably his acceptance of a remunerated post on the board of asset management company Oasis (see article), his subsequent decision to grant permission to Oasis to sue Judge Siraj Desai, the deeply problematic Thubelisha judgment, and his seemingly endless string of racialised verbal assaults. The JSC's decision to drop charges should not cloud the minds of ordinary South Africans, or those members of the JSC who will be making Constitutional Court appointments in the near future, about the character deficiencies Judge Hlophe has showed repeatedly.
Today's decision is one of the most destructive early consequences of the Zuma administration's attitude towards our judiciary, and the consequences of a deferential and ANC compliant JSC. We now have a senior judge, and possible candidate for the Constitutional Court bench, who has a cloud of impropriety hanging above his head; a cloud which will not go away until the allegations are investigated and either confirmed or dismissed. Until such time as that happens, the integrity and independence of the judiciary will continue to be sullied.
This article by Helen Zille, first appeared in SA Today, the weekly online newsletter of the leader of the Democratic Alliance, August 28 2009
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