Rule of law growing flabby

2009-08-29 08:07

WITH respect, M’lords and M’ladies of the Judicial Service Commission (JSC),

there is only one word to describe your finding on Cape Judge President John

Hlophe. Whitewash!

In your own words, Hlophe “did in fact talk to Judges Nkabinde and Jafta

about the Zuma/Thint cases ...”. And what did he say? Again, in your own words,

you tell us: “Hlophe said that the cases and some of the legal issues that they

raised were important and urged that they be decided properly.”

Hlophe took two separate trips to Johannesburg to attempt to influence his

fellow judges, according to publicly led evidence. There can be, in our view, no

greater evidence of “gross misconduct”, yet he has escaped the gavel. Again.

Hlophe is a judge with nine lives. We live in an age of impunity. We have

become a nation which has chosen to sweep things under the carpet rather than

take the much harder, but higher road to truth and justice.

Our president, Jacob Zuma, entered office after charges of corruption, fraud

and racketeering were dropped.

The man found guilty of corrupting Zuma, Schabir Shaik, now golfs his way

across the courses of Durban after he was let out of jail because he was on his

sick bed.

Not a single civil servant found to be moonlighting illegally has been

censured or disciplined, according to the auditor-general.

The rule of law is growing flabby and our generation will have to answer to

the next about why this was allowed to happen.

Some say that this is realpolitik; that the judiciary would have suffered

much greater harm had the inquiry been drawn out with opportunities for

cross-examination to arrive at truth.

It is, apparently, a political decision to protect the Constitutional Court

from the body blows it has taken over the past 15 months.

It’s time to move on, to wipe the slate clean. But what happens to justice

and to truth?

Now the path is open for Hlophe to take a run for one of the four vacancies

on the Constitutional Court. Hearings for those seats start on Saturday and the

JSC has cleared a path for the judge-president.

Let’s hope that the good men and women of the JSC who will submit a list of

seven people to the president to choose the final four have read their own

finding very carefully.

In a split decision (six for and four against), the JSC noted that its hands

are tied by a very limited palette of instances comprising judicial misconduct.

While Hlophe is not guilty of gross misconduct, his actions may have been, in

their own words, unwise and imprudent.

Together with his judicial record (Hlophe has notched up only one reportable

judgment over the past decade), is it wise and prudent to consider him for the

Constitutional Court?

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