The Justice for Hlophe Alliance once again calls on all honest and fair-minded South Africans to rise up and defend the soul plus integrity of the judiciary. It has become increasingly clear that there is a concerted effort and campaign by "ghosts from the past" to pursue political considerations and override legal reasoning.
In the spirit of the constitution, The Promotion of Administrative Justice Act (PAJA) seeks to promote "just administrative action" that is "lawful, reasonable and procedurally fair". It is cause for concern therefore that this noble Act has since been hijacked to pursue narrow political interests, as evidenced by previous attempts from the DA to challenge the decision of the National Prosecution Authority relating to the dropping of charges against ANC President, Jacob Zuma and now the Freedom under Law which wants to challenge the JSC's decision on Hlophe.
We note that too often when judicial outcomes do not favour certain political ideologies, PAJA has been a convenient instrument to undermine such decisions, through attempts to bring the integrity of that particular judicial institution into question. We submit that such unintended consequences which give rise to these ulterior motives had never been the purpose of promulgating the Act, and it is becoming painfully obvious that it creates a loophole for political mischief.
Alas, of all the people, the latest abuser of PAJA is retired Constitutional Court Judge Johan Kriegler, who is reported to be on a mission to launch an onslaught on the integrity of the Judicial Service Commission (JSC) - again - likely to contest outcomes by suggesting among other things that in deciding on the Hlophe vs. Constitutional court matter, the JSC was "irrational; biased or reasonably suspected of bias" or that its decision was taken "for an ulterior purpose or motive; because irrelevant considerations were taken into account; because the decision was taken in bad faith etc".
We suspect that Kriegler is still very bitter that the Department of Justice "ignored" the research he presented on the Judicial Code of Conduct, which he co-authored with Judge Louis Harmse - a former member of the apartheid Broederbond with a "curious history" on the bench, after he denied the existence of the hitsquads. Judge Kriegler served for 10 years on the bench but there is nothing in his actions to suggest that he is the epitome of good conduct himself. He is nonetheless the latest to be fashioned a "Judicial Messiah" - as alluded to by another controversial white judge and favourite daughter of the DA, Carole Lewis, in her infamous speech to the South African Institute of Race Relations - where she suggested that the promotion of Black people in the judiciary has dropped the standards (see here).
It is irresistible to note that some of the above-mentioned characters share a particular attitude towards black people but they cunningly camouflage their prejudice by including a few Black faces. In support of Kriegler's ambition to supposedly, "steer the bench from the grave", Professor Pierre de Vos ululated the evil crusade, concluding his piece by challenging anyone for a "plausible defence of the JSC". Although coming across as "cocky and confident", there are two inferences to be drawn from de Vos' challenge: (1) Either de Vos doubts the grounds of Kriegler J's argument, or (2) he is simply trying to provoke legal contestations to dignify what is clearly a political argument.
The latter rings true, given the attempts further down his piece to conflate the political adventure by Kriegler with the legal arguments raised by another renowned "Hlophephobic", Professor David Unterhalter, in an article on the Business Day (see here). We would not even attempt to respond to de Vos' challenge, because to do so would be to introduce legal arguments in a matter that is clearly politically motivated, thus baptizing the political ghosts of a retired judge save to say that de Vos would only fool his merry band of sycophants who share similar disdain for Hlophe JP.
On another matter, we note with concern comments emanating from certain sectors that Moseneke DCJ was the, "heir apparent" and had been "groomed" to take over the position of Chief Justice after Langa CJ's tenure. The crucial question to ask would be: "groomed by whom?", "when" and "on whose authority" because Moseneke was parachuted from business to DCJ. The constitution sets out clearly the procedures that must be followed in the appointment of the Chief Justice, and similarly for the Deputy Chief Justice. Any assertion that certain individual(s) had already taken it unto themselves to "groom" the future Chief Justice points to a worrying tendency of people who would consider themselves to be bigger than the constitution and in particular, the ordinary people of South Africa.
The sum total of all these incidents, and the extent to which they are likely to damage the integrity of the judiciary, should send a clear message to the public that our hard fought freedom and democracy is under attack from a minority or loose individuals who have not only mastered deception and disinformation, but also the art of undermining legitimate constitutional bodies through the courts. We are aware that Kriegler is the mastermind behind another attempt to undermine the courts with his continued role in courts of arbitration. Kriegler's attempt is to gradually render the magistrates and high courts redundant by encouraging all companies, more and more, to include clauses that the first court of dispute resolution must be arbitration and/or mediation. At this juncture, all clandestine attempts are being made to cast aspersions on the integrity of all jurists who are not part of Kriegler's cabal.
A closer look at the people, who make up this Freedom under Law, reveals that these are sinister forces. There is one thing in common between all of them - they are bitter in one way or the other about the turn of events in the political arena since when they were on the losing end of the game. They have thus formed this unholy organisation to launch a fight-back strategy which seeks to undermine democratic processes. Of course one can argue that there are Black people with strong struggle credentials but haven't we always had Black faces supporting apartheid in the past too that also had similarly strong credentials but acted as double agents?
Indeed we are living in interesting times, when even the Archbishops bless devilish works under the guise of the cloth. But our call for Hlophe JP to ascend to the Constitutional Court remains unwavering and we will continue to support him until this goal eventuates. The public needs to take a stand: No more shall "house negroes" be placed at the helm of key institutions! We must also send a strong message to the courts that litigants cannot be allowed to bring matters to the bench relying solely on their ability to influence judicial politics and therefore judicial outcomes.
Statement issued by Jossy Zitha on behalf of the Justice for Hlophe Alliance, Mpumalanga Chapter, 04 September 2009
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