Justice for Hlophe Alliance accuses JSC of selective investigation

Jabu Khuluse asks why the Western Cape JP's case has been prioritised over that of another judge


The JSC is a very high ranking body which plays a pivotal role in our judicial system; accordingly it is supposed to uphold the highest ethical standards, fairness and strive to protect human rights irrespective of race, creed and/or affinity one holds in society. It is common course to expect that in its carriage of its mandate, it would not prejudice anybody's rights, least of all a fellow judge. Sadly though, it has been found wanting on this subject and as a body which is tasked with amongst other things, interviewing judges and also attending to complaints against judges and ultimately make recommendations thereon, this organisation is partial.

There is a pending case against a Western Cape judge (BM Griesel) which by all indications has been relegated and rendered unimportant to investigate. Instead what we've seen happening is that the matter relating to judge Hlophe was given unwarranted and suspiciously urgent attention despite there being many other cases which came before his and worse still even when he had given good cause in terms of why proceedings shouldn't continue.

We feel that we must state categorically that the JSC is supposed to be impartial and fair in their investigative processes. It is very ironic therefore that as a judicial body, they could commence a hearing despite Judge Hlophe's legal Counsel having sought a postponement thereon on the 7th and 8th of April 2009 as well as a further postponement on the 17th of April. This request was however unreasonably and unjustifiably denied by the JSC, indeed any legally trained, reasonable, and open minded person will know and understand that such refusal and the JSC's conduct on this particular issue of adjournment and continuing with the hearing was unreasonable and it directly infringed on Judge Hlophe's right to a fair hearing.

We reiterate that the JSC's attitude and its conduct seeks to undermine our Constitution and the rule of law in this country. This body should be exemplary in upholding our Constitution without fear nor favour, and do so equally no matter who and what is the skin colour of the judge being investigated or the views the person holds about transformation of the bench but the same cannot be said of the JSC's Kangaroo court like conduct. The JSC has a chance to redeem itself by living true to the constitutional guidelines of its founding documents. 

This selective pursuance of investigations unfortunately further fuels the belief we have always held that there was a political motive in the manner in which the matter was brought up and publicized. The JSC's bias and continued shelving of the case against judge Griesel and others confirms just that. That they conveniently published the complaint in the media without a charge sheet having been crafted nor drawn up against Judge Hlophe, is proof that they sought to tarnish his image by trying him in a court of public opinion.

Their (i.e. some of the JSC members who double as Concourt and SCA judges, a clearly racist Cape Bar and the DA who have all opined in this matter) hatred is exacerbated by his principled stance and determination of unmasking the racists in the judiciary. The JSC's unbecoming behaviour undermines our democracy and the ideals as enshrined in the constitution, which begs the question: Is the Judge not also protected by our constitution?

As the JFH Alliance, we consequently believe that the complaint by the ConCourt judges brought against Judge Hlophe before the JSC should be dropped forthwith. As directed by the High Court judgement, the JSC should completely reverse all processes which it had begun to undertake relating to this matter and deal with case afresh. The JSC is advised to deal, firstly, with all those impeachment cases which came before judge Hlophe's enquiry. Since there are political elements who want to manipulate them though, they are unlikely to heed this call. We thus challenge the JSC to prove us wrong by following the order of the date of receipt of complaint cases against judges.

The public must know that this process is flawed and fraught with irregularities because the fundamental principles were read incorrectly by some of the commissioners with the sitting not even properly constituted. We were vindicated by the High Court decision which confirmed that whatever reasons the JSC advanced for refusing and continuing with the hearing without him can not overshadow the right to a fair hearing and right to be heard.

We as the JFH alliance will continue to fight for our young democracy, the independence of the judiciary and above all our constitution. Any judge whose rights are abused for political gain and where we see political meddling, we will not hesitate to voice our disapproval. We are saying with one unequivocal voice that the abuse of Judge Hlophe's rights must stop. Judge Hlophe's hearing will never be fair after the JSC conducted themselves as they did in the media and continued to seek to abuse his constitutional rights as they have been doing since they went to the media.

If the JSC decides to press ahead with the enquiry, we again call on the current commissioners to either resign or recuse themselves so that new commissioners who are fair and untainted can hear this complaint. The Justice for Hlophe Alliance supports the view expressed by the honourable Minister Radebe to the effect that the transformation of the judiciary is a constitutional imperative. As the Alliance, we also disagree with the notion, as some commentators have suggested, that the intervention by the Minister at the last JSC sitting is an attempt by the ruling party to control the judiciary

Statement issued by Jabu Khuluse on behalf of the Justice for Hlophe Alliance, June 26 2009

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