South Africa

ANALYSIS

Cape High Court faces credibility crisis over Hlophe allegations

Western Cape Judge President John Hlophe. (Photo: Foto24 / Gallo Images / Getty Images / Felix Dlangamandla)

Last week Western Cape Deputy Judge President Patricia Goliath lodged a complaint with the Judicial Service Commission, containing explosive allegations against Western Cape Judge President John Hlophe. Judge Hlophe has been dogged by controversy, and over the past 15 years no fewer than three different complaints of gross misconduct have been lodged against him at the JSC. Unfortunately, it is unlikely that the JSC will deal quickly and effectively with the most recent allegations against Hlophe, not least because Hlophe may use the same Stalingrad approach he has used to delay the finalisation of a previous complaint against him.

If even half of the allegations contained in Deputy Judge President Goliath’s complaint against Judge President John Hlophe are true, a reasonable observer would have to conclude that the Western Cape High Court is a cesspit of bigotry, violence, nepotism, political bias, juvenile sexual shenanigans and disrespect for the rule of law. 

Whether some or all of the allegations are true or not, urgent intervention is needed to prevent further damage to the credibility of the Western Cape High Court. When it comes to courts, negative perceptions can be just as damaging as the proven facts, which is why the allegations should be thoroughly investigated in a manner that instils confidence and trust. Attempting to sweep the complaint under the carpet would be a disaster for the judiciary.

Among other things, Goliath alleges that in 2015, Hlophe attempted to influence the appointment of judges in a legal challenge by NGOs Earthlife Africa Johannesburg and the Southern African Faith Communities Environment Institute to former President Jacob Zuma’s secret R1-trillion nuclear deal with Russia. Goliath claims that Hlophe had informed her back then that “criticism of former President Jacob Zuma with regard to the controversial nuclear deal was unwarranted”.

The alleged conduct would clearly contravene article 4 of the Judicial Code of Conduct. The article states that judges must:

“(a) uphold the independence and integrity of the judiciary and the authority of the courts; (b) maintain an independence of mind in the performance of judicial duties; (c) take all reasonable steps to ensure that no person or organ of state interferes with the functioning of the courts; and (d) not ask for nor accept any special favour or dispensation from the executive or any interest group.”

Any attempt by the Judge President to influence the outcome of a case in favour of a particular politician would constitute a clear attack on the independence of the judiciary. Such an attempt would also erode the integrity of the judiciary. Even if such an attempt was not successful, it could have a catastrophic impact on the credibility of the court. 

This is because the credibility of the court depends, to a large extent, on the public’s perception of that court. Once the public starts to distrust the head of a court, all the judgments emanating from that court will be viewed with suspicion. 

Imagine a situation in which the version put up by Judge President Hlophe flatly contradicts everything Goliath alleges in her complaint. In such a case the public will be confronted by two versions and will have to decide whether they believe the judge president or the deputy judge president, the man or the woman. The worst possible outcome in such a situation would be a finding that it is impossible to determine whether Hlophe or Goliath are lying, leaving both in their positions as leaders of the court. This is because both versions cannot possibly be true, which means one of the two most senior positions of the court will be occupied by a dishonourable liar.

Some of the other allegations — linked to assault and sexual impropriety — are rather tawdry. The complaint depicts some judges in the Western Cape High Court as poster boys for toxic masculinity, behaving like juvenile delinquents during arguments about extramarital sexcapades. 

For example, Goliath alleges that Judge President Hlophe was involved in a feud with a fellow judge sparked by “allegations purportedly of a sexual nature”. It is alleged that Hlophe first verbally abused the fellow judge “and it seems that the judge was compelled to do criminal work as a form of punishment”. Later, so it is alleged, Hlophe “went to the judge’s chambers and physically assaulted him. The judge concerned drew up an affidavit for the purposes of filing a criminal complaint. However, it appears that PAPIER J (and another judge, I think) intervened and persuaded the judge not to proceed with the criminal complaint”.

These allegations would partly fall under article 5 of the Judicial Code of Conduct, which states that:

“(1) A judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office. (2) All activities of a judge must be compatible with the status of judicial office… Note 5(iv): Judicial conduct is to be assessed objectively through the eyes of the reasonable person.”

It may also partly fall under article 6 of the Code which states that a “judge must, at all times, also in relation to extra-judicial conduct, comply with the law of the land”.

Unlike the allegation of trying to change the composition of a bench to favour former President Jacob Zuma, it should be easy to establish whether the allegations of assault (and efforts to sweep the assault and alleged gross misconduct under the carpet) are true. This is because in the version presented by Goliath there are several people involved who will be able either to confirm or deny the allegations. However, the complaint implicates not only the Judge President Hlophe but also Judge Papier who, in the version provided by Goliath, intervened to prevent the law from taking its course.

The first port of call for any complaint made against a judge for a breach of the Judicial Code of Ethics is the Judicial Conduct Committee (JCC), comprised of six senior judges, chaired by the Chief Justice. Frivolous or hypothetical complaints and those solely related to the merits of a judgment or order can be summarily dismissed. More serious and relevant complaints can either be referred to a Judicial Conduct Tribunal for a full investigation (if the allegation constitutes a potentially impeachable offence), or it can be referred to the Chief Justice (if the misconduct does not amount to an impeachable offence) for an inquisitorial inquiry. In the latter case, the Chief Justice may then impose remedial steps on the judge after conducting a hearing.

Some of the allegations contained in Goliath’s complaint (including the ones mentioned above) would clearly constitute gross misconduct if true, and I imagine that the JCC will have to refer these allegations to a full Judicial Conduct Tribunal (consisting of two judges and one lay person), who will have to investigate the matter and make findings. However, in another Judicial Conduct Tribunal case, Judge President Hlophe has used a similar strategy deployed by former President Jacob Zuma to try to prevent the tribunal from hearing the evidence and making a finding.

These delays in the previous matter — in which judges of the Constitutional Court accused Hlophe of trying to influence a decision in favour of former President Jacob Zuma — began in 2013 and continue to this day. Initially, the tribunal was delayed by numerous legal challenges, then by applications for recusal of a judge sitting on the tribunal. In late 2019 the tribunal was again delayed, apparently because Judge President Hlophe demanded that the state pay for the services of Queen’s Counsel from London to represent him, which the state refused to do.

As the state has already paid about R10-million in legal fees for the litany of legal battles that have emanated from the previous complaint of gross misconduct, the State Attorney’s office is refusing to pay the legal cost of a foreign lawyer. Department spokesman Mthunzi Mhaga said in 2019 that the amount claimed by Hlophe towards his legal fees was “excessive and exorbitant”.

Mhaga said then that they would be prepared to pay capped amounts.

“These amounts are R25,000 for senior counsel, R16,000/R10,000 for junior counsel. There is no agreement to pay for a particular senior counsel or QC. The Department’s understanding is that it will pay a maximum of R25,000 per day.”

All this means that the Chief Justice and the JSC now face a huge problem. Given the seriousness of the allegations made against Hlophe and given the damage that it will continue to cause to the judiciary, it is imperative that the allegations are promptly and thoroughly investigated and Hlophe either cleared emphatically or, if he is found guilty of gross misconduct, immediately removed from office. But if the Judicial Conduct Tribunal appointed to look into the most recent allegations faces the same kinds of delays that the other tribunal dealing with allegations against Hlophe has faced, it may be eight to 10 years before the matter is resolved either way.

While such a delay may arguably be good for Judge President Hlophe, it would be catastrophic for the credibility of the Western Cape High Court. DM

Professor Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled ‘Constitutionally Speaking’, in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about constitutional and other legal developments related to the democracy.

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