JSC operating like a kangaroo court - Justice for Hlophe

Alliance spokesperson Percy Gumbi accuses commission of trying to tie Jacob Zuma's hands

Justice for Hlophe Alliance, a nonprofit organization that works to defend and seek justice for Judge President Hlophe and all pro-transformation judges (black and white) who find themselves unfairly attacked for their strong, principled and unwavering pro-transformation stance, wishes to state the following to the public in South Africa and around the world:

1. We are deeply appalled by the shocking revelations of intrigue, scheming, back-stabbing, betrayals, political manipulation and conspiracies being perpetrated against Judge President Hlophe by the Judicial Services Commission. Two days ago on April 29, 2009, a highly respected member of the JSC provided evidence that the JSC is intent on carrying a sinister political agenda engineered in dark corners by some amongst its members. See, [here] Posted to the web on: 02 May 2009 "Top legal minds paranoid over Zuma."

The article states that a dissenting JSC commissioner says "Hlophe hearing was rushed due to misplaced fear of political meddling." The impetus for the gross violations of Hlophe's rights to procedural and substantive due process was the paranoid fear of the members of the JSC about the alleged "SHENANIGANS" by the new Zuma administration. It is alleged that "changes to the composition of the Judicial Service Commission (JSC), were factors considered by the JSC when it decided not to grant Western Cape judge-president John Hlophe a postponement at a hearing last month, a commissioner claims."

Hlophe requested a postponement when the hearing got under way, but this was denied and the JSC heard evidence for two days in his absence. It has now been revealed that the factors the JSC considered was "the possibility that the current commissioners may be replaced" after the elections. During the JSC's confidential internal discussion on the issue, a "view was expressed that we must make sure that we at least start the evidence in order to have the matter partly heard before the current commissioners so that ‘when they (the new administration) start doing their shenanigans after the election on April 22 2009, we shall be seized with the matter'."

2. The first statement is a bold faced admission that the current JSC is preoccupied with carrying out a political agenda against Hlophe - hence its consideration of the irrelevant issue of the replacement of incumbent commissioners. There is no basis for assuming that the incoming Zuma government would necessarily "replace" the current JSC members - some of who were originally appointed by former President Mandela.

The second statement is likewise a bold faced galling admission that the current JSC harbours political bias against, hatred and contempt for the incoming Zuma government. A more blatant statement of political bias can scarcely be imagined - how can the current JSC accuse the incoming Zuma government of "shenanigans" before it even assumes office? Is the Hlophe case being used to present Zuma with a political fait acompli in that the current JSC want to ensure Hlophe's impeachment and thereby frustrate Zuma's ability to even consider Hlophe for appointment as this country's Chief Justice? Has Hlophe been targeted as a sacrificial lamb in this political gamesmanship in which Mbeki's first cousin Marumo Moerane is leading the charge?

3. We condemn in the strongest possible terms the flimsy reasons given by the majority of the commissioners for refusing Hlophe's request for postponement, namely that it "was manifestly in the interest of the parties, of the administration of justice and of the public, that there should be no further delays". The hearing was scheduled to start on April 1, 2009. On April 1, 2009 the hearing was postponed because Hlophe was ill, and then again on April 4, 2009 because he was still sick and had appointed a new senior counsel to represent him. When the commission reconvened on April 7, 2009 Hlophe's advocates presented a genuine medical certificate showing that Hlophe was still indisposed and asked for a further postponement. The postponement was refused.

JSC acting chairman Lex Mpati said at the time the decision was a majority one, and the hearing went ahead in the absence of Hlophe and his legal team. The JSC's reasons for refusing Hlophe's last request for a postponement says the commission "balanced the interests" of Hlophe "against those of the other justices involved, who were anxious that the matter proceed". "Furthermore ... the commission had already granted Hlophe JP an indulgence by postponing the matter on two previous occasions." Ultimately, the JSC majority decision reads, it decided that "good cause had not been shown for the further postponement of the matter and that fairness and justice required that the hearing should proceed, if necessary without Hlophe being present". These are all pretextual false statements meant to cover-up the JSC determination to deliver a political "final solution" in the Hlophe matter.

4. We note that the timing of the decision raises the prospect that the proceedings were being conducted with definite political motives - they are a show trial and nothing more than an effort to blackmail President-elect Jacob Zuma. After many months of idleness by the JSC, it is clear that the rush to conclude the matters now is nothing bur hurried effort designed to tie Zuma's hands as he assumes office - a hostile JSC is certainly determined to make it politically and legally difficult to stop the controversial proceedings or even impeachment recommended by the current JSC which unabashedly operates like a Kangaroo Court.

5. We unequivocally state that from the very onset, the JSC had embarked on a deliberate course of action designed to not only deny Hlophe a fair hearing but to cast a dark shadow on the integrity of the JSC's adjudicative process itself. All along, the defendant judges and the JSC had taken the position that they could not proceed with a hearing on the merits of the complaints and counter-complaints pending before the JSC. Their excuse was premised on the notion that the majority decision in the WLD granting declaratory relief and the subsidiary findings "would be binding upon the JSC." They argued that the majority "effectively usurped and pre-empted the exclusive jurisdiction of the JSC. That body alone is authorised to investigate allegations of gross misconduct. Not only is the exclusive jurisdiction of the JSC undermined, but its duty properly to investigate allegations of gross misconduct is substantially impeded. It may no longer embark upon an enquiry, the effect of which would be to contradict the findings of the Court. The capacity of the Judges to defend themselves against Hlophe JP's complaint (and to present the complaint against Hlophe JP) before the JSC is likewise substantially inhibited."

Accordingly, the JSC was hamstrung by the pending SCA appeal and could not perform its duty unless and until the appeal was resolved at least in favour of the Concourt judges. Judge Mpathi who wears two hats as both the President of the SCA and the JSC appears to have conjured up a magical solution to that dilemma and demonstrated clairvoyance about both the substance and timing of the SCA ruling which cannot be matched by any Sangoma. Mpathi simply scheduled a JSC hearing on the merits for April 1, 2009 and the SCA obliged the JSC by issuing a decision against J.P. Hlophe on March 31, 2009 and thus clearing the way for the JSC to proceed with the most biased investigative techniques ever imagined. It stretches credulity to a breaking point and defies logic to suggest that there was no coordination between the two processes (SCA and JSC).

How could Mpathi have confidently scheduled a firm hearing date so close in time to the SCA decision without having had off the record discussions with his SCA colleagues as to when they intended to issue a ruling against Judge Hlophe? Most disturbing, the timing of the ruling and the JSC scheduling of the hearing all give the appearance that they were synchronized to deny Hlophe a fair and adequate opportunity to study the judgment or to pursue his appeal options. It appears well-timed to Hlophe into a hearing before the JSC before he could exhaust his avenues for appeals and certainly to enable the JSC to deliver a political "final solution" before the April 23, 2009 general elections. Certainly, the JSC has underestimated the intelligence of South Africans and it now owes the discerning South African public an explanation about its political machinations and falsehoods.

6. Clear and unequivocal evidence shows that the JSC is part of those who for misguided ideological reasons seek to destabilise our society by vandalizing our constitution and allowing extraneous political considerations to influence the judgment of supposedly independent state institutions. The dissenting opinion has finally exposed the web of political manipulation of the case - the incalculable damage inflicted on our society by the culture of misusing independent institutions for narrow partisan political agendas.

7. We note with grave concern that the events surrounding the JSC's processing of the complaints by the Constitutional Court judges reveal a far more sinister political agenda: It is a matter of record that the Democratic Alliance was the only political party which received the initial May 30, 2008 JSC complaint and media statement issued by the constitutional court judges against Judge President Hlophe. No other political party, (including notably the ruling ANC) was given such privileged status by these supposedly neutral and apolitical judges. The statement received extensive and prominent coverage in electronic and print media and the Democratic Alliance and its henchmen have essentially dictated the pace and nature of the proceedings before the JSC.

8. We note with grave concern that the SCA has, in its zeal to assist the Constitutional Court judges, essentially thrown the notion of judicial independence and JSC's investigations of judicial misconduct into complete and utter chaos. The suspicious timing of the issuance of the decision and the JSC's scheduling of its hearings on the merits of the complaints and counter-complaints gives an appearance of a manipulation of the judicial process and is antithetical to the notion that justice must not only be done but must be seen to be done.

9. The JSC, whose attitude towards the other Concourt judges can only be called solicitous and protective, seemed intent on blindly dismissing the questions about a political conspiracy theory in the Hlophe case. From its clearly biased list of questions, it was clear that the JSC intended to use the proceedings to punish Hlophe for complaining about the very political manipulations now being exposed. The JSC not only refused to examine charges that the allegations against Hlophe are politically motivated but it also offered up some derisory comment during the hearings held in Hlophe's absence. The JSC, which had signalled to the parties that it would not allow robust cross-examination of the complaining witnesses. Therefore, Hlophe's illness presented the JSC with an opportunity to have unrestricted presentation of the witnesses' testimony without any cross-examination. Judge Mpathi used his quite considerable latitude in conducting the proceedings to help the Concourt judges at every turn. All of this showed clearly that the JSC process was being infected with an improper partisan animus.

10. We are now convinced that the entire JSC hearing involving Judge President Hlophe is a politically motivated lynching. Our contention remains that Hlophe has been denied and will not receive a fair trial due to the culture of manipulation of state institutions, media and the judiciary.

11. We note that even during the darkest days of apartheid, the courts routinely granted postponements of hearings on grounds of illness and other demonstrable good cause. A request for continuance, premised upon the inability of a party litigant to attend the trial of his action because of a bona fide illness, deserves liberal consideration. It cannot be doubted that it is the right of the parties to the action to be present at the trial of their case.

An adjudicative agency should not lose sight of its paramount objective of rendering justice. The essence of judicial [or agency] discretion is the exercise of judgment directed by conscience and reason, as opposed to capricious or arbitrary action. An agency, like a trial court, must follow fair procedures and provide due process. Its discretion must be exercised in a manner to subserve and not to impede or defeat the ends of substantial justice. One element of this requirement is the opportunity to present one's case -- to attempt to meet one's burden of proof -- in a fair manner before an impartial fact-finder.

12. We condemn the JSC's myopic insistence upon expeditiousness in the face of Judge President Hlophe's justifiable request for delay - the JSC has rendered the right to defend with counsel a empty formality and the proceedings a total farce. The JSC's denial of Hlophe's requests for continuance appear to have been based on a blind and uncompromising adherence to the politically motivated scheduled hearing dates. A further, and more egregious, example of the unreasonableness of the JSC's unyielding commitment to keeping the hearing dates appears from the majority decision where the record is distorted to suggest that Hlophe's postponement request was not based on his illness. In making this misrepresentation, the JSC, in a relentless and single-minded quest to ensure that the hearings would be heard on the politically- based schedule, simply ran roughshod over the interests of justice. In making this choice, the JSC clearly lost its way.

13. We condemn without reservation and in the strongest terms any attempts to impugn the integrity of these outstanding South Africans - no one has the right to connive and hatch conspiracies to violate a citizen's rights under the guise of "confidentiality." We call upon the law-abiding citizens, particularly those who care about the integrity of our judicial system, to assume an honest and determined commitment to upholding the rule of law in South Africa such that the misuse of our independent institutions for partisan political purposes may be totally eradicated. It is time to stand more firmly against the JSC's illegitimate and biased political machinations, and more firmly in solidarity with Judge President Hlophe who has been a victim of persecution at the hands of reactionary and racist forces.

14. And finally, we commend the courage of people of absolute integrity like Attorney Mvuseni Ngubane who are working bravely in support of the social, political and economic transition currently taking place in our country in spite of the grave threat of constitutional vandalism posed by certain reactionary elements in state institutions.

15. We are therefore of the view that Justice Hlophe will never receive a fair hearing. We are also of the view that the JSC has moved from being apolitical institution but are now part and parcel of the political shenanigans. The judiciary itself has been the pivotal "porn" in the ANC power struggle between President Zuma and Mbeki, hence Justice Hlophe finds himself being victim of such power play. The Justice for Hlophe Alliance is then calling for the commissioners to be appointed to hear Judge Hlophe's hearing.

Statement issued by Percy Gumbi on behalf of the Justice for Hlophe Alliance, May 15 2009

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