By Karen Breytenbach
Members of the faculty of law at the University of Cape Town are the latest influential group in legal circles to question whether Cape Judge President John Hlophe is fit to occupy his position.
"Judge Hlophe should consider whether his continuation in high judicial office in our legal system will not further damage our constitutional democracy," the group of 14 academics said in a letter to the Cape Times.
The signatories to the letter are: Hugh Corder, faculty dean; Paul Benjamin, professor of development and labour law; Tom Bennett, head of the department of public law; Halton Cheadle, professor of public law; Anton Fagan, head of the department of private law; John Gibson, director of the Institute of Marine and Environmental Law; Chuma Himonga, deputy faculty dean and research associate at the Centre for Socio-Legal Research; Dale Hutchison, professor of private law; Evance Kalula, director of the Institute of Development and Labour Law; Mike Larkin, head of the department of commercial law; Christina Murray, research associate at the Law, Race and Gender Unit; Pamela (PJ) Schikkard, head of the department of criminal justice; Clifford Shearing, director of the Institute of Criminology in the department of criminal justice; and Danie Visser, professor of private law.
The academics said they felt Hlophe, an honorary professor at the faculty from 1999 to 2005, had "damaged the reputation of the judiciary" by failing to declare payments from Oasis Asset Management and then allowing the company to sue Justice Siraj Desai.
Hlophe claimed he had verbal ministerial consent to do the work, but had no proof.
The professors echoed the Cape Bar Council's concern that the Judicial Service Commission (JSC) had not been open about its investigation of Hlophe and its decision to close the case against him last week.
The JSC released a short media statement on its findings last week, but has not made its full procedures and judgment public.
The JSC statement said it found Hlophe's explanations "unsatisfactory in certain respects", but nevertheless felt it did not have enough evidence to proceed with a formal inquiry or request Parliament to impeach.
The UCT academics said they wanted to express their "deep disquiet" at events surrounding Hlophe, for "several reasons which strike at the heart of the attempts to build a constitutional democracy", but did so with "great sadness".
"For many months, we have waited anxiously for the JSC to resolve the matter of the payments to Judge Hlophe by the Oasis group, anticipating that the matter would be at least explained, or better resolved, by the JSC, as it is mandated to do by the Constitution. We have kept public silence on this issue, out of respect for the proper process. We are dismayed by the outcome, which cannot but damage the judicial process."
The letter said members of the faculty had for years defended the separation of powers between the judiciary and executive (the government). Judges were most suitable to deal with issues of judicial misconduct.
"We call on the JSC urgently to remedy this situation, by providing at least sufficient details of the evidence before them and their reasoning in reaching the conclusions which they did," the letter read.
Meanwhile, 27 staff members of the Cape High Court, from researchers to security and cleaning staff, have come out in defence of their boss, saying the controversy surrounding him is a "storm in a tea cup" and "trial by media".
Earlier this week the majority of senior advocates at the Cape Bar pledged their support to nine highly respected senior counsel, who, following on former Constitutional Court Judge Johann Kriegler, called on Hlophe to resign.
Kriegler commented in the Sunday Times that Hlophe had let down all those who were passionate about transformation through his "greed" and "lamentable lack of judgment".
The Black Lawyers' Association called on the JSC to rebuke Kriegler for his "undignified outburst".
Sources confirmed Hlophe would be eligible for a R2-million tax-free gratuity if he managed to hold office until 2010.