Why the Hlophe decision was wrong – in legalese

It's amazing what you can do with time, money, and the best lawyers in the business. Freedom Under Law, the body that made all the noise about it originally, has now finally officially lodged its submission for a judicial review, of the Judicial Service Commission's decision not to investigate whether Judge John Hlophe did try to interfere in those Constitutional Court cases. And it's a gem.

Essentially, the wrong people were involved in the JSC's disciplinary meetings, there weren't enough of them, the about-turns on crucial issues were irrational and unsubstantiated, and the commission hasn't produced certain vital documents, despite a freedom of information request to do so. The group also says the JSC acted "unconstitutionally, unlawfully, irrationally and unreasonably and procedurally unfairly".

It's a mouthful, but it sums up some of the serious feeling that exists in the legal profession on this issue. FUL points out that the JSC decided there was prima facie evidence of wrongdoing, held a hearing, was told by a court it needed to start the process again, started again, and then suddenly in the middle of that process appointed a three-person panel to investigate, and reversed its earlier decision. As the papers point out, this was all without having a proper hearing, without letting most of the commissioners hear from the witnesses, and without following any due process.

The result, says the FUL, is that the rule of law has been weakened for all of us, fourteen judges have been left with clouds over their heads, and the entire legal system has been damaged.

The papers go further, into how the JSC's disciplinary committee should have had at least thirteen members. Only ten sat. Missing was a representative of the Advocate's profession, Dumisa Ntsebeza (it was okay for him to be absent, he had to recuse himself) and a representative of the Western Cape Premier. And Andiswa Ndoni sat on the committee, despite having made statements in favour of Hlophe in her capacity as president of the Black Lawyers Association. She has always claimed she made those statements only for her organisation, but as the papers point out, she has never disowned or retracted those comments. The Ndoni issue is crucial, and she could find herself a weak part of the JSC's case.

One of the big issues the papers address is the point raised by the dissenting commissioner, the four people who published their own minority decision, to press ahead with the case. It's about cross-examination described as "the best engine to get to the truth when there are competing versions of it". The documents point out how irrational the decision not to proceed with cross-examination was. We've been following the case for months, and even we'd forgotten how strange that decision was. What FUL shows so clearly, is that no proper reason has ever been given by the majority of the JSC's disciplinary committee, that properly explains why cross-examining those involved would be such a bad thing. The only hint, and this is canvassed in the papers, is that there could be a fear of a media frenzy.

It also shows the decision not to continue was really aimed at preventing any cross-examination. That was the real point of this decision, that it wasn't aimed at justice, or at getting to the end of this entire saga. The whole point of this decision was to make sure there was no cross-examination. Nothing else mattered, and that was why the law was stretched so far in this case.

Reading these submissions sums up why so many people were so angry and disappointed at the JSC's decision. The outcome, and the reasons given for it simply don't make any sense. What FUL has managed to do, is to put all of that into language a judge will understand. It's one hell of a submission, and when this goes to court, it's going to be on hell of a case.

Stephen Grootes
(Grootes is an EWN reporter, www.ewn.com)