Agenda item for next JSC meeting (cont.)
Dear Ms Masangwana,
1. It is not clear to me how exactly items are accumulated and added to the agenda for the meetings of the Judicial Service Commission (JSC). I therefore rely on you, in your official capacity as its secretary, to observe all protocols and procedures in this regard, to place this email before the members of the JSC urgently, and to acknowledge safe receipt of it.
2. According to a media report by SAPA and a journalist called Natasha Joseph published today in the Cape Times, page 5 column 3, the spokesperson of the JSC, Adv M Moerane SC, is quoted as saying: "the question of (Hlophe's) suspension is not before the JSC" but that the JSC would meet in about three weeks to discuss its investigations into the learned Cape Judge President.
3. I would respectfully suggest that the question of suspension should be on the agenda of the next meeting, which I understand is being urgently arranged, and that as soon as possible thereafter the JSC should, as is required by section 177(3) of the Constitution, advise both the learned Judge President and the President of its position in relation to the possible suspension of the former by the latter in the manner contemplated in the said section. This seems to me to be the duty of the JSC as per its powers under sections 178(4) and(5) of the Constitution and its obligations, as an organ of state, under section 165(4).
4. It is not my place to delve, uninvited, into the intricacies of the facts, the procedures according to which and the law upon which the JSC will advise in the matter, nor do I presume to do so. It is simply that I am deeply concerned to read the report that the issue of suspension "is not before the JSC".
5. It seems to be common cause that the learned Judge President still stands accused of gross misconduct, which, if proved, may also constitute the crimes of contempt of court and two attempts to defeat the ends of justice. It is also undisputed that upon being so accused by all of the Justices of the Constitutional Court (as of May 2008), the learned Judge President applied for and was granted "special leave" until resolution of the complaints against him on the basis that the existence of the complaints constituted "exceptional circumstances" as contemplated in the applicable regulations. This obviated the need, at the time, to advise on a suspension. These exceptional circumstances still pertain and there appears to be no legal basis for the unilateral termination of the "special leave" granted by the then Minister of Justice and duly accepted since June last year.
6. However, the learned Judge President appears to be adamant that he is entitled to return to work at this stage, has done so, and has spurned entreaties directed to him by the successor to the Minister who granted that leave to resume it. Those who have publicly defended the decision to terminate the "special leave" unilaterally would appear to be misguided as regards the meaning of the rule of law, the actual nature of the "special leave" and the proper role of the judiciary in our constitutional order. Alternatively, there may be political mischief afoot, aimed at undermining the judiciary, which ought to be dealt with pro-actively. If this is regarded as a relevant consideration, I can expand on it.
7. It concerns me that an untenable situation which threatens the dignity, independence, effectiveness and impartiality of the judiciary is unfolding in the circumstances set out above. I accordingly, and not without hesitation, feel duty bound to draw this to the attention of the JSC in the context of this request, so that it can indeed give consideration to that which is inexplicably not yet before it: the suspension of Hlophe JP.
8. If the media report that elicited this communication is inaccurate or misleading, and the matter is already in fact on the agenda, I would be comforted to receive official confirmation that suspension will indeed be under discussion when next the JSC meets. A published correction of the report may also be indicated for the benefit of the public. If any further information or detail is needed from me, I shall do my best to oblige.
9. I derive my locus standi to address this communication from the public interest, from the interests of the judiciary and my fellow legal practitioners, as well as from my own duty to justify the trust and confidence in my fidelity, integrity and ability which the then President, Nelson Mandela, bestowed on me when he awarded me silk in 1995.
Yours faithfully,
Paul Hoffman SC