Judicial conduct has been under the spotlight lately with two stories hitting front pages in the last week alone. The first story concerned Judge Ntsikelelo Poswa who has made some pretty controversial decisions lately, the most recent of which was his decision to grant R1 000 bail to two men accused of murder. The Judge Poswa went so far as to give one of the accused R60 for transport money out of the judges pocket in chambers.
Judge Poswa’s ruling was found to be illegal by the Supreme Court of Appeal which basically found that Judge Poswa lacked the legal authority to release these two men accused of murder, attempted murder and robbery with aggravating circumstances. The Supreme Court of Appeal went further and found that:
Justice according to law failed completely. In the absence of the inquiry that is required by law, the judge had no legal authority to grant bail.
The Judicial Services Commission, the body formed in terms of the Constitution to oversee judicial conduct, has been urged to censure Judge Poswa for his conduct.
Another case which has proven to be remarkably controversial is the matter of Cape Judge President, John Hlope, who was criticised for payments he received from the Oasis group of companies. The allegations of misconduct against Judge Hlope were investigated by the Judicial Services Commission which found that there was:
… no evidence to contradict Hlophe’s assertion that he had received oral permission from Dullah Omar, the late minister of justice, to receive a retainer from the company …
Needless to say, this finding came as a bit of surprise to many. Pierre de Vos, a professor of law at the University of the Western Cape, had the following remarks on his blog:
This is, to say the least, a perplexing outcome that smells of politics and not of principle. I have a few questions for those members of the JSC who endorsed this strange outcome.
- On 1 April 2006 Judge Hlophe told Independent newspapers: "I am not on a retainer from Oasis or anybody. I am not so stupid as to receive a retainer from any party." Hlophe later admitted to receiving money and the SABC report seems to suggest that the JSC has accepted that this was a retainer. Was he just making an April fools joke or was Judge Hlophe lying when he made his initial statement?
- Was there not perhaps an untenable clash of interest when Judge Hlophe – on a retainer from Oasis – gave permission to the same Oasis to sue fellow Judge Siraj Desai? If so, does this bother the JSC or do they not have any ethical standards?
- It is reported that Hlophe admiited to receiving money from Oasis from 2000 to 2005. Hlophe claims that Dullah Omar gave permission for this. But Dullah Omar stopped being the Minister of Justice in May 1999. How on earth can the JSC believe that permission was given at such an early stage for payments which only started a year later? Do they believe in the tooth fairy as well?
This outcome is deeply unsatisfactory. Some brothers and sisters among us will of course say that my criticism is proof of racism – that I assume all black people are corrupt and that Judge Hlophe is the victim of a conspiracy. If we do not believe his story it is because we do not want to believe black people – ever.
I have considered this possibility but I hope I am motivated not by such base assunptions but by concern for the integrity of the judicial system. A system that was so fatally tainted in the apartheid era and that we are trying so hard to rehabilitate.
I will fess up to racism if, and only if, anyone can provide me with satisfactory answers to the above questions. What is required, really, is for the JSC to present us with ALL the facts: from the date on which Justice Hlophe first received money from Oasis; the basis for this payment; how much was paid; when did it stop? If this information is not provided, a cloud will hkeep on hanging over Justice Hlophe and now also over the JSC.
In the absence of a full explanation by the JSC, it would be hard not to suspect that racial solidarity won out over principle and common sense at the JSC. In my eyes they have shot themselves in the foot big time. Only full disclosure can begin to restore their credibility. Today is a dark day for the judicial system in South Africa.
These two cases are difficult ones for me as an attorney. While there may well be much information that the JSC possessed and will possess should it investigate Judge Poswa’s conduct that is not publicly available and which may well make all the difference, the biggest problem is how the public will view the judiciary as a result of these sorts of cases. Justice must not just be done, it must also be seen to be done and it seems pretty clear that justice has not been seen to have been done by a long shot and that hurts the judiciary and undermines the many hard-working and dedicated judges on the bench today.