Judicial Service Commission … political renting?

The Supreme Court of Appeal, South Africa, (SCA) has lambasted the Judicial Service Commission (JSC)

for attempting to brush the John Hlophe issue under the carpet.

What happened is that two Constitutional Court Judges had alleged that Hlophe attempted to influence them in an upcoming hearing on a matter involving Jacob Zuma, then a presidential candidate; now President. As a result all of the Judges of the Constitutional Court had signed a letter formally laying a complaint of an attempt by Hlophe to pervert the course of justice in violation of our Constitution. Hlophe filed a counter complaint of victimization. Both claims remain unproven.

Judge John Mandlakayise Hlophe is perceived as a champion of Black interests in the ANC camp. Not surprisingly, therefore, his cause was taken up within the camp, and the Constitutional Court Judges, and their complaint came under vociferous attack. A "Justice For Hlophe Alliance" was formed.

Under the Constitution the JSC has a duty to adjudicate complaints properly laid against a judge. The nation awaited its decision with bated breath.

The JSC did not adjudicate the matter. It concluded that it was unable to do so. Its reasoning was that any hearing on the matter would be a waste of time, as it would never be able to decide the truth of the matter, given Hlophe’s denial. It is to state the obvious to say that when a person is accused of misconduct, civil or criminal, the fact the he/she denies it can never preclude/disable an adjudicating body from having a hearing and deciding where the truth is. Courts, tribunals and other fora all over the world, are daily faced with situations of dispute.  Deciding truth is the very essence of adjudication. So, in simple terms, the JSC decided to funk out of its duty. The SCA has said as much. The question is Why? Why did the JSC decide to abdicate its duty to decide whether or not Judge John Hlophe was guilty?

What happened inevitably induced a perception that Hlophe’s enormous political stature, and perceived connections to the now very powerful Jacob Zuma camp, influenced the JSC and triggered their dysfunction. In terms of this view, it is really a no brainer, given how obviously wrong their funk was? John Mandlakayise Hlophe had the political currency to save him. The JSC was prepared to deal in it. It is called political renting. Is this the culture at the JSC?

I (Chris Greenland) appeared before the JSC to be interviewed as to my suitability for appointment as a judge. As the interview started, Commissioner Julian Von Klemperer (picture on right) stated –“Mr. Chairman we are opposing confirmation of this candidate as a judge”. 
The interview had hardly begun … and here was a commitment by a camp, because that is what the use of the word “we” must mean, to oppose my candidature whatever my performance in the interview.  There had been a complaint that Von Klemperer "did not apply its mind" to the issue in the process involving adjudication of the Hlophe matter. This is exactly what Von Klemperer was now doing as regards my candidature ...  not applying his mind to the process but prosecuting an agenda instead!

Klemperer camp was making it clear that he and others on the Commission had already made up their minds. An interview was a waste of time. Coincidentally Hlophe tried unsuccessfully to have Von Klemperer removed from the JSC panel due to adjudicate the complaint about him. 

In support of this agenda against me, because that is what it was, Von Klemperer served up a monstrous lie, and produced a false transcript of court proceedings over which I had presided, in order to support the lie. Despite my protestations that the accusation was preposterous the attack was allowed. See media report …
In doing so, he admitted that it was an “ambush”, as I had not been given any notice of his accusations. It is an established practice of the JSC that candidates are given timeous notice of concerns.

Thereafter there was no interview, as the matters covered could never have informed any reasonable person as to my suitability for a judgeship. For instance, it was muted that Robert Mugabe had appointed me as a judge as an act of “reconciliation”.

Quite obviously if members of an adjudicating authority make it clear at the start of the process that they are not going to accept your candidature, whatever you might have to say, the subsequent interview is a sham. Permitting the ambush, and the marginal relevance of the questions that followed, simply confirmed the process as a complete sham.

In a subsequent communication to the JSC, both the complete falsity of the accusation and the transcript, advanced by Von Klemperer, were proved beyond any shadow of doubt. The further obvious point was made that the falsehoods had been advanced in terms of an artfully crafted agenda, at the heart of which had been the production of a false transcript. Since the court had been jam-packed with lawyers and advocates, at the time I presided over it, all these “officers of the court” had not heard me say what Von Klemperer served up to the JSC. And yet the lies had been served up all the same.

The glaringly obvious point was made that to serve up lies to the JSC, in order to mislead it in its sacred duty to assess a candidate for the office of judge, was subversive of our constitution. The further point was made that, in terms of evidence, manifest before and after the interview, it was clear that the motive behind the whole scam was to block my appointment, as I was perceived as being pro public in Road Accident Fund matters. The Chief Justice, Pius Langa,  confirmed, after many months of insistence for an answer, that the falsehood had emanated from the Eastern Cape Society of Advocates.

Advocates are officers of the court. By any test, lying by an advocate to a public body is serious. Lying to the JSC, a constitutional organ of State, could not be more serious. It is of interest to note for instance –

The Judicial Service Act (Ch 14) of Uganda, S 21 –

“Any person who, in connection with the exercise by the commission of its functions, wilfully gives to the commission any information which he or she knows to be false or does not believe to be true, or which he or she knows to be false by reason of the omission of any material particular, commits an offence and is liable on conviction to a fine not exceeding thirty currency points or to imprisonment not exceeding twelve months or to both.”

Lying in order to block the appointment of a shortlisted candidate to the office of judge is indescribably serious. It is a subversion of the Constitution, as it obviously disables the JSC from making a competent assessment of a candidate.

This occurred in October 2008. To date the JSC has done absolutely nothing about the matter. The miscreants are known. What they did stands proved beyond doubt. Why? Why has this matter of most serious implications been also swept under the carpet?

The answer appears from the facts of the incident itself. As said, Von Klemperer was allowed to commit to a stance on behalf of a constituency, even before I was interviewed. The JSC then contented itself with what was now a sham interview.

What this means is that the operational culture of the JSC was to permit its own members to commit to endorsing or blocking a candidate for a judgeship on behalf of a faceless patron, cabal, constituency or person. Judges are then selected on the basis of the strength of that patron, cabal, constituency or person, i.e., political currency.

The judge, so selected, is then beholden to whoever ensured his/her appointment. The independence of the judiciary is thereby rendered somewhat elusive. Nothing could be more serious.

If this young democracy is being made subject to political renting at the very heart of its constitutional organs and institutions, it is already perniciously betrayed. What is of particular concern is that the country's most senior judges and advocates serve on the JSC.

And what have I done about this gross injustice? Recorded it in a book for all posterity to know how you fare in South Africa when you have no political currency to trade in; 
and how Nelson Mandela's dream came to be betrayed.. 

At least truth will endure.

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