South Africa

JUDICIARY IN CRISIS: ANALYSIS

Judge Hlophe’s hand-picked representative from WC Bench to vote on tribunal impeachment verdict

Judge President of the Western Cape John Hlophe. (Photo: Felix Dlangamandla / Daily Maverick)

Western Cape Judge President John Hlophe — the first judge to face possible impeachment for gross misconduct after being found guilty by a Judicial Conduct Tribunal — selected a judge to represent the division at deliberations into his final fate.

Judicial Service Commission spokesperson Doris Tshepe confirmed to Daily Maverick that Judge Monde Ishmael Samela “represented the Western Cape Division of the High Court at the JSC meeting on 4 June. The JSC had no role in the determination of who attends on behalf of the division”.

Emails to the Judge President as well as his legal advisor, Barnabas Xulu, with regard to Samela’s presence at the JSC were not responded to at the time of publication.

Hlophe’s suspension was set to be decided on Friday, 4 June, by a “small” JSC of 14 (minus National Assembly and National Council of Provinces members) but the final verdict has been postponed to 30 July due to a “deadlock”.

The failure by the JSC to explain the delay has been slammed by Lawson Naidoo of the Council for the Advancement of the SA Constitution (Casac) as “an affront to the foundational constitutional principles of accountability, responsiveness and openness.”

Freedom Under Law (Ful) has repeatedly urged the JSC to recommend to the President the suspension of Hlophe pending the judicial inquiry.

The matter has dragged on for 13 years and has resulted in very public and acrimonious exchanges between the country’s most senior judges, plunging the country’s judiciary into crisis.

Said Tribunal chair, Judge Joop Labuschagne: 

“We consider it our duty to vindicate the integrity of the Justices of the Constitutional Court, in particular Chief Justice Langa, Deputy Chief Justice Moseneke, Justice [Bess] Nkabinde and Justice [Chris] Jafta, whose integrity has been called into question by Judge President Hlophe’s unfounded and scurrilous attacks. 

“They acted with honour to protect the institutional integrity of the apex court of our Republic.” 

On 4 June the commission was unable to reach consensus, despite the scathing findings, on whether Hlophe should face impeachment for attempting to improperly influence Constitutional Court Judges Nkabinde and Jafta in 2008. 

Hlophe will continue to serve as Judge President until 30 July and perhaps even beyond.

It has come to light that Hlophe dispatched Samela, the 14th most senior judge in the Western Cape division, to the JSC to vote on a matter in which the Judge President himself is the accused.

This places any decision taken by the JSC in jeopardy of being taken on review as the legal rule against bias, or Nemo judex in causa sua “no one should be a judge in their own cause”, would apply.

Hlophe should not be picking and choosing who sits in judgement of him.

Daily Maverick has reliably learned that there was a “split” in the JSC vote, which means some members support Hlophe and intend to argue in his case.

Each “side” has been requested to deliver written legal arguments and it is these submissions that will be presented and voted on on 30 July.

While legal experts all agree that Hlophe’s hand in the selection of a judge to represent the division at the JSC, which is set to vote on the matter, would make the decision taken “reviewable” but no one is quite sure “by whom?” 

Hlophe strikes again. DM

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  • Eish Marianne, very good article. It just illustrates perfectly the mess that the JSC is in. There is no credibility left, and somehow the President has to dissolve it completely, as should be the entire Western Cape high court. It is simply too compromised because of Hlophe, although there might be some credible individual judges. But we don’t now whom. The outcome of the current case of the Public Protector in the WC high court will be most interesting. Coming back to the JSC, I truly hope the hard work of Casac and Ful pays of, for the sake of the credibility of the entire judiciary in South Africa

  • What a shambles,stick to the rules,then it is easy.The judiciary is compromised,just like the police.They regard themselves as esoteric(not including egos).If a verdict has been given why must the esoteric club still vote again. Hlope should have been gone long time ago.The club has become a joke,not voting with there conscience but with there own personal outlooks and political views.The public must look up to them???No they are ashamed of them.

  • Shambles, shame and sham are all that comes to mind. It’s like Zuma saying; I want to choose who prosecutes me! The trouble is they are appointed, and the electorate can do FA to influence the gemors.

  • “quis custodiet ipsos custodes “(who guards the guardians?) -Juvenal. An ancient philosophical question, but very relevant in SA’s current political/judicial malaise. From Wikipedia….In his 2013 report to the UN Human Rights Council the Independent Expert on the Promotion of a Democratic and Equitable International Order: “Crucial remains the conviction that the government should serve the people and that its powers must be circumscribed by a Constitution and the rule of law…Juvenal’s question remains a central concern of democracy, since the people must always watch over the constitutional behaviour of the leaders and impeach them if they act in contravention of their duties. Constitutional courts must fulfil this need and civil society should show solidarity with human rights defenders and whistleblowers who, far from being unpatriotic, perform a democratic service to their countries and the world.” 27 years ago SA was in a unique position to write, what was supposed to be water tight checks and balances – separation of executive, judiciary and administration, the Chapter 9 institutions, the Constitution, the role and duties of Parliament, then followed the stifling law making at all levels of Government to be followed by ordinary citizens and business. Yet with all this we’ve nearly slipped into the abyss. Only the last bastion of the judiciary, and that as revealed in this article is under threat, is preventing anarchy. Time for a creative new approach?

  • When the present chief justice was appointed there was great concern that he would be a dud and a lackey of Zuma. As things have turned out it appears he was not in Zuma’s pocket, and that man must rue the day he made the appointment.

    However recently the behaviour of the chief justice has been peculiar, and it won’t be too soon that when his term ends in a few months.

    This will be a chance for Ramaphosa to appoint a chief justice of real integrity. Someone in the mould of Arthur Chaskalson, Pious Langa, Moseneke or Zondo. Someone who can take control and halt the rot in the judiciary. Someone who has the guts to say to Hlope and his ilk.

    STOP. You’re fired. Move to jail without passing GO. No pension or other retirement benefits for you.

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