The case of Judge John Hlophe threatens to damage the integrity of SA’s judiciary with dire consequences for democracy, writes George Devenish.
Johannesburg - The Constitutional Court has been of seminal importance for the implementation of the democratic dispensation since 1994 in order to give credible and cogent effect to the supremacy of the constitution and a vibrant human rights culture. As a court, it has been manifestly the most esteemed in the land, being the ultimate guardian of a progressive and universally admired constitution which is the supreme law of South Africa.
Its erudite, exemplary and bold jurisprudence is perused and studied in other illustrious courts, such as the House of Lords, the American Supreme Court, the Indian Supreme Court and the German Constitutional Court.
It has had world-class, eminent jurists such as Arthur Chaskalson, Pius Langa and Sandile Ngcobe, who have led the court with distinction. They have left an invaluable legacy that should not be squandered or tainted.
It is therefore a matter of profound sadness and regret that its reputation and esteem are now being tarnished by the continuing saga involving Judge President of the Western Cape John Hlophe in the Special Disciplinary Tribunal, set up by the Judicial Service Committee (JSC).
This state of affairs has its genesis in the serious allegations that Hlophe had attempted to defeat the ends of justice by trying to influence two Concourt judges to give judgment in certain cases in favour of President Jacob Zuma.
Although the matter has been simmering for five years and it was fervently hoped it would reach finality when it was to be adjudicated on by said tribunal, an unprecedented development has now occurred with potentially prejudicial consequences for the integrity, esteem and, indeed, independence of the Concourt and its members.
In what can only be described as a bizarre twist of events, the two principal witnesses, Concourt judges Chris Jafta and Bess Nkabinde, have in an unprecedented volte face refused to appear before the tribunal.
It was argued on purely technical grounds that Hlophe had no case to answer, since Justices Jafta and Nkabinde had refused to give sworn statements to appear before the tribunal to confirm their erstwhile complaint and subject themselves to cross-examination.
The chairman of the disciplinary tribunal, retired judge Joop Labuschagne, dismissed the objection raised by Hlophe’s counsel that there was no valid complaint, and held therefore that the tribunal would have to address the substance of the complaint.
However in a further development, as a result of Labuschagne’s dismissal of the such objection, Justices Jafta and Nkabinde decided to institute a review application of the dismissal.
Moreover, Hlophe is reported to be considering throwing in his lot with the review application to be brought by the two Concourt judges. It is estimated this could greatly prolong the proceedings, even up to two years.
As a result of this anomalous conduct, the motives of the two judges are being openly impugned in the media in such a way that the court, as a whole, and its members appear to be embroiled in this most unfortunate and prejudicial episode.
Why have the two judges changed their mind? Who is, and who is not, telling the truth? Has any undue pressure been brought to bear on them in this regard?
Although these are profoundly painful questions, failure to address them imperils our justice system, which is premised on integrity, honesty and public esteem.
It is, therefore, at least the characters of three prominent judges, who will continue to adjudicate and give judgments in the highest courts, that are being called into question.
This is a tragic tale of woe that threatens to cast a dark shadow over the judiciary, whose reputation and probity are essential for the operation of authentic democratic government.
It could metaphorically leave an indelible stain that will not be able to be erased, or a lingering and foul odour, impregnated into the very fabric of justice.
In the words Shakespeare’s Lady Macbeth, bemoaning her fate: “What, will these hands ne’er be clean?” and “here’s the smell of the blood still. All the perfumes of Arabia will not sweeten…”.
This traumatic state of affairs must be seen for what it is – a constitutional crisis of chronic proportions that could do permanent damage to the judiciary with dire consequences for democracy.
George Devenish is Emeritus Professor of Public Law at the University of KwaZulu-Natal (Durban) and one of the scholars who assisted in drafting the interim constitution in 1993.
** The views expressed here are not necessarily those of Independent Newspapers.
The Star