JSC decision 'biggest threat to rule of law' - Kriegler

He was speaking as the head of Freedom Under Law (FUL), a new body concerned with the promotion of the rule of law, and noted the pending legal challenge against the JSC decision not to probe Cape Judge President John Hlophe (reported in yesterday's Legalbrief Today) has the support of two FUL panel members, Archbishop Desmond Tutu and Dr Mamphela Ramphele. '...The two did not only empower me, but asked me to express in public, the grave seriousness of (the matter). The rule of law will not survive if the legitimacy of the judiciary in not protected,' Kriegler said, according to a report on the News24 site. The JSC's decision not to probe allegations that Hlophe tried to influence Constitutional Court judges in a ruling involving President Jacob Zuma's former corruption case was 'gravely harmful to the rule of law', Kriegler said. The former judge noted 'unequivocally' that the purpose of the legal challenge was not to have Hlophe impeached, but to compel the JSC to do its duty. The JSC's decision was 'irrational and unreasonable'. Hlophe told Beeld yesterday he was 'not aware' of Kriegler's remarks. 'If I had been aware I would have had no comment.' JSC spokesperson Marumo Moerane SC said: 'We will wait for the court papers and reply in a suitable manner.' Full report on the News24 site Full Beeld report

The JSC decision flew in the face of legally accepted ways of dealing with conflicts of fact, notes Kriegler. He pointed out, according to the Cape Times, that the JSC had recognised that there was a conflict of fact between the Constitutional Court judges' version of events, on the one hand, and Hlophe's, on the other, but said it would be pointless to cross-examine the parties because they would stick to their stories. 'For thousands of years, lawyers have recognised that when there are conflicts of fact the recognised way of resolving them is to submit the conflicting versions to cross-examination. We find it astounding the JSC can decide that it's pointless to have cross-examination because they'll stick to their guns in any event,' Kriegler is quoted as saying. He made the point that the JSC's decision had already impaired the nomination process for new Constitutional Court judges, with one judge having already withdrawn his application. 'I was approached by five of the candidate judges, four of whom I could persuade to continue their applications. The fifth, Judge Bob Nugent, of the Supreme Court of Appeal, has withdrawn his application... and he has asked me to convey to his fellow countrymen that he has done so because he cannot submit his candidacy to the deliberation of people he does not trust,' Kriegler said. Full Cape Times report (subscription needed) See also a report in The Times

The JSC decision on Hlophe is described as 'hugely unsatisfactory' by Hugh Corder, professor of public law at the University of Cape Town, although he does not hang his dissatisfaction with the ruling on the political peg. Corder is quoted in the Financial Mail as saying the majority decision 'borders on the irrational' and 'leaves a thundercloud' over the heads of the judges of the Constitutional Court (who had complained of improper interference by Hlophe) and over Hlophe himself. This is because, says Corder, the JSC decision reflects many conflicts of evidence given under oath by the judges, and there is no finding as to whose version is true. Corder is less concerned by the broader political influence brought to bear on the decision than on what it says for the JSC leadership. The FM quotes him as saying: The main point is that 'there has not been sufficiently clear and decisive collective leadership in matters of discipline'. Full Financial Mail report (subscription needed)

The way the Hlophe matter has been handled by JSC amounts to the biggest scandal in our legal history since the packing of the senate in the 1950s to abolish the limited franchise for coloureds. So says an editorial in the Financial Mail, which notes the irony in that 'the JSC was created precisely in order to prevent real and perceived political interference in the judiciary'. It adds: 'We thought the JSC would be one of the instruments that would guarantee the independence of all courts. Instead it has made a sad and depressing spectacle of itself. Not only has its majority decision in the Hlophe matter indicated a slavish deference to the desires of the ruling party, it has revealed itself to be clumsy and contradictory in its processes and collective thinking.' The editorial makes the point that the JSC dismissed the complaints of the judges against Hlophe, and his counter-complaint against them, as if they were equally weighty. 'But they were not. On the one side were 11 of the country's most senior judges, taking a step that was unprecedented and so dramatic that it can only have been done with reluctance and after careful reflection. On the other side was an individual who appears to be a magnet to attention of the wrong kind, and whose behaviour in this and other controversies has marked him out as singularly unsuited to judicial office'. Full Financial Mail editorial (subscription needed) See TODAY's ANALYSIS