Is the Judicial Service Commission worth its salt?

The controversy over Cape Provincial Division’s Judge President, Judge Hlope’s absolution of any conflict of interest by the Judicial Service Commission this last week continues with a report in the Mail & Guardian about certain apparent irregularities in the JSC’s findings and continued opposition to Judge Hlope remaining on the bench.

According to M&G’s report, the JSC heard and accepted Judge Hlope’s statement that he had received permission from the late Dullah Omar, previous Minister of Justice, to receive payments from the Oasis Group.  This is apparently somewhat irregular as Judge Hlope’s statement was not under oath and was the only evidence received by the JSC.  It has now emerged that the JSC was divided largely along racial lines on this finding.  A group of JSC members led by Advocate George Bizos SC (a long time advocate for people oppressed by the Apartheid government) is pushing for a thorough public investigation before the JSC could arrive at a proper finding.  Certainly the following factors point to a strong need to have this issue fully investigated, at least in my mind:

• Judge Hlope has ruled on matters pertaining to the Oasis Group;
• Judge Hlope is a trustee of the Oasis Group and is therefore closely associated with it;
• Judge Hlope gave the Oasis Group permission to sue fellow judge Siraj Desai (the permission of the court is required before you can sue a judge); and
• Although, as a judge, Judge Hlope has access to a free car and petrol for business and personal use, he apparently accepted payments from the Oasis Group for "petrol expenses".

The controversy over Judge Hlope goes beyond his dealings with the Oasis Group.  A few months ago a senior member of the Cape Bar, Advocate Peter Hazell SC, instituted proceedings to have Judge Hlope impeached "contempt of court, bringing the administration of justice into disrepute, conduct unbecoming of a judge and gross incompetence".  The JSC is investigating this matter as well and has apparently said that it is waiting for information from Judge Hlope in response to the charges.

What I found telling was a quote in the M&G article which was attributed to a senior judge who has asked to remain anonymous:

"The JSC doesn’t have the legal teeth to do anything about Hlophe. The man is an embarrassment to the institution and he’s a racist. He acts with impunity because he knows that his skin colour protects him. If a white judge has said and done the things Hlophe has done, he would have been out on his ear before the sun rises the next day."

Another concern is the secrecy which seems to shroud the JSC.  M&G tried to determine who the members of the JSC are and were consistently refused this information.  The JSC is an oversight body charged with watching over our judges.  It is an alternative to direct political interference in the judiciary (which the Minister of Justice has sought through various legislative initiatives which have, until now,  been thwarted) and a mechanism to allow the judiciary to govern and regulate itself.  If the JSC’s activities are to be shrouded in secrecy and hidden from public view then how does the JSC hope to promote faith in the judiciary.  As I have mentioned before, justice must not just be done, it must be seen to be done and that doesn’t happen through secretive proceedings.

Tags: judge hlope, judicial service commission, conflict of interest, impeachment, judicial misconduct