Jacob Zuma's court

ON FRIDAY the Judicial Services Commission (JSC) made known its decision about whether Western Cape Judge President John Hlophe should be taken through a full hearing about complaints against him. The complaints, by a number of Constitutional Court judges, amounted to an accusation that he had attempted to influence two of the court's judges in a matter that involved the man who is now our president, Jacob Zuma.

The JSC also had to deal with a counter complaint by Hlophe that a media statement released by the Constitutional Court judges announcing their complaint against him to the JSC amounted to a violation of his rights.

The JSC decision on both matters was that there was insufficient evidence to prove gross misconduct, which is what the body is mandated to deal with, and as such closed both cases.

In refusing to refer the Constitutional Court complaint to a full inquiry, the JSC said the complainants were basing their assertion for a referral on a belief that proof would emerge under cross examination. The JSC said: "We would be naïve if we believed that Hlophe JP will not persist in his denial that he had such intention, no matter how extensive or intensive the cross-examination on that point."

They however castigated Hlophe's behaviour: "His conduct may have been unwise, ill-considered, imprudent, not thought through. But in and of itself it is not gross misconduct ."

A minority in the JSC however felt this was wrong and wrote a dissenting view in which it said: "The real charge against Hlophe JP is not that he improperly influenced, but merely attempted to do so. Such an attempt would, if proved, amount to gross misconduct. Circumstantial evidence can only be dealt with properly at a formal hearing where there would also be cross-examination."

The JSC also said of Hlophe's claim of political motive: "In our view, the allegations by Hlophe relating to ulterior motive(s) to get him at all costs; bringing undue and inappropriate pressure to bear on Nkabinde J and Jafta JA to act contrary to their conscience in order to achieve judicial solidarity by false pretences; the concealment of the complete and true facts in a hell-bent attempt to maintain a veneer of judicial solidarity; acting with a political motive; masterminding leaks to the media in a well orchestrated media campaign - are as unfortunate as they are incapable of establishment on the basis of all the evidence before us. They should not have been made without proper proof."

Pointer to the future

Two things are significant here. Firstly, the JSC had started the full inquiry earlier, in April to be precise, but had to stop. And in between that stoppage and the decision announced on Friday, the composition of the JSC has changed significantly, with Zuma appointing his own people to replace those that had been there when Thabo Mbeki was president.

Secondly, it would be significant to know whether the dissenting minority group was the old order grouping that had been part of the earlier hearing, or whether it included some of the new regime appointments.

This is important because although in a sense the JSC decision is now water under the bridge, it may be a pointer to the future. The JSC gathers in Kliptown in a few days time to choose four Constitutional Court judges from a list of 24, including Hlophe.

Given the findings above and what is known about Hlophe, amongst others, the Oasis scandal in which he was found to have been moonlighting for the company and then sitting in judgement on an issue involving them.

All of these beg the question, is this a man who should sit on the Constitutional Court, let alone hope to lead it one day.

The JSC will soon tell us whether they buy into the fallacy that the course of transformation and black interests in the judiciary can only be safeguarded and advanced through this man.

If they should so decide, it will then be up to Zuma to confirm Hlophe and impose him on this nation. Such a scenario would reveal what the designs of Zuma are on the courts, and may even have implications for the new Chief Justice in waiting, Sandile Ngcobo and the rest of that court.

- Fin24.com