Judicial commission has second chance to do the right thing

The Times Editorial: John Hlophe, judge president of the Western Cape High Court, will have to face another inquiry into his alleged gross misconduct that took place when he approached two members of the Constitutional Court in a bid to influence the outcome of a case.

The Supreme Court of Appeal yesterday found that the proceedings and decisions taken by the Judicial Services Commission (JSC) in 2009 relating to Judge Hlophe were invalid.

The judgment now sets aside the commission's original ruling that Judge Hlophe did not made himself guilty of misconduct when he allegedly approached two judges to influence a case relating to President Jacob Zuma.

The manner in which the commission had gone about its ruling had caused widespread criticism at the time.

For many, the JSC's cautious approach to Judge Hlophe - not only during the inquiry but also when they attempted to have his interview for a place on the Constitutional Court in 2009 heard in camera - sent a worrying signal about the independence of the commission.

It appeared that the body - meant to appoint and discipline judges - was incapable of acting with courage and conviction when dealing with each other's alleged misdeeds.

The appeal court's decision yesterday reinforces this perception, referring to a refusal from one of the commission's members to divulge information about how the members voted in the decision as being irreconcilable with SA's constitutional democracy.

Further, the court said: "... it would indeed be a sad day for our constitutional democracy were serious allegations of judicial misconduct to be swept under the carpet for reasons of pragmatism and practicality ..."

What happens from here depends entirely on the commission. If it were to be given advice - do the right thing and deal with Judge Hlophe in a courageous, transparent manner.