JUDICIARY IN CRISIS
The rise and (slow) fall of John Hlophe, the judge who almost took the judiciary down with him
Hlophe held so much potential but shaped his power as a personal means to an end rather than submit himself to the dynamic demands and pitfalls of a constitutional democracy in the making for the greater good.
Western Cape Judge President John Hlophe remains in a state of legal limbo as the Judicial Service Commission (JSC) considers submissions on whether to suspend him pending an impeachment decision by Parliament.
On 25 August it was announced that the majority of the eight-member JSC had voted to uphold tribunal findings of gross misconduct against Hlophe.
And so, just as he made history in 1995 with his appointment as the first black judge to the Western Cape Bench, Hlophe appears to be ending his stellar but controversy-ridden career as the first post-apartheid judge to face possible impeachment.
The Judge President of the Western Cape was found unanimously guilty by a tribunal 13 years after a complaint by all the justices of the Constitutional Court that he had sought to influence the outcome of a matter relating to former president Jacob Zuma’s corruption charges.
The turning point in the life and times of John Mandlakayise Hlophe can be traced to 2004, when a majority ruling favouring the then minister of health, Manto Tshabalala-Msimang, in an application involving the New Clicks pharmaceutical group – an important case for South African administrative law – was overturned by the Supreme Court of Appeal (SCA).
Hlophe and fellow judge James Yekiso penned the majority ruling that favoured the government’s position on regulations with regard to the pricing and dispensing of medicines.
However, Hlhope’s deputy at the time, Jeanette Traverso, proffered a minority judgment which was later upheld by the SCA, prompting Hlophe to reportedly remark to The Star that he “couldn’t care less” about it.
In that instance, Appeal Court Judge Louis Harms found that Hlophe had denied the pharmaceutical companies the right to a fair hearing by unreasonably delaying his decision on their appeal application.
The matter and Hlophe’s delay (which he has always denied) in making a ruling on the Big Pharma application set the scene for his future belligerence towards those he viewed as undermining his judgment, legal acumen, authority or worldview.
Hlophe’s love and aptitude for administrative law had been encouraged as a student by Professor Lawrence Baxter, a leading scholar in the field whom Hlophe had encountered after enrolling in 1982 for his LLB at the University of Natal in Pietermaritzburg.
To slip the coils of apartheid laws, Hlophe had to register a fictitious job as a gardener. While a student he wrote his first academic article, The KwaZulu Act on the Code of Zulu Law, No. 6 of 1981 – a guide to intending spouses and some comments on the custom of lobolo, under the guidance of Baxter.
Cambridge beckoned in 1984, and he later qualified to enter the Cambridge Doctoral Studies Programme. Hlophe was regarded as a brilliant legal academic and authored several papers that are regarded by his peers as valuable contributions to the law.
That in 2004 the pharmaceutical companies directly approached the SCA, bypassing his division, had deeply irked Hlophe.
Even worse, a star advocate, Jeremy Gauntlett, whom Hlophe had praised highly only months before, had acted for the pharmaceutical companies.
Two months before this, Hlophe had written to the then minister of justice, Brigitte Mabandla, recommending Gauntlett’s appointment as an acting judge in the division.
In a subsequent report on alleged racism in the Western Cape Division, also delivered to Mabandla, Hlophe confirmed that for him, “It all started with the New Clicks matter.”
The target of Hlophe’s ire in the aftermath was Gauntlett and all he represented in the legal world Hlophe found himself inhabiting.
Smarting from the perceived betrayal, on 21 February 2005, Hlophe circulated a Report on Racism in the Cape Provincial Division to all judges in the division.
There is no doubt that Hlophe would have encountered, upon his appointment, an entrenched fraternity (it consists largely of men) of white legal professionals many of whom had been shaped, as had Hlophe, by South Africa’s racist past.
Hlophe’s report revealed a man who felt deeply troubled and isolated and who claimed he was regarded a “legal non-entity”, ironically the same insult he would hurl in 2020 at his deputy, Patricia Goliath, a black woman.
Hlophe would go on through the years to allegedly insult a range of colleagues, from calling an attorney “a piece of white shit” to accusing another of “trying to fuck my wife”.
He has also accused outgoing Chief Justice Mogoeng Mogoeng of being an Islamophobe and a liar.
While Hlophe may have identified 2004 as the start of his subsequent anni horribili it actually all began in 2000, the year he took up his position as Judge President of the division.
That same year, the Judge President was appointed as a non-executive director of Oasis’s Crescent Retirement Fund, receiving about R500,000 in consultancy fees which he did not initially declare to the SA Revenue Service or his minister.
It was only five years later when Oasis Group Holdings sued fellow judge Siraj Desai, who had accused it of intimidation in its attempts to develop head offices in University Estate where Desai lived, that Hlophe’s moonlighting activities were exposed.
It was Hlophe who had given permission for Oasis to launch a R250,000 defamation case against Desai, shooting himself in the foot in the process.
But Hlophe limped along after he was subjected to a formal JSC inquiry by a special disciplinary committee consisting of Judge President Bernard Ngoepe, Judge Craig Howie and advocate Seth Nthai. (Nthai has since been struck off the roll for soliciting a R5-million bribe in an international arbitration in which he represented the government).
The JSC in that instance announced that no formal hearing would take place as available evidence did not amount to prima facie proof of gross misconduct.
In a column in the Natal Witness in 2009, then group editorial director of the Natal Witness, John Conyngham, wrote that in 1995 he had come across an article about Hlophe in the South African Sugar Journal. This was after Hlophe had, at the age of only 36, been appointed the first black judge at the Western Cape High Court. He was also the youngest judge ever appointed in the country.
Assuming Conyngham was paraphrasing the original article, he sets out how Hlophe had lived with his family on the farm of Ian Smeaton at Kearsney, just inland from KwaDukuza.
“Over weekends and during school holidays, Hlophe weeded the farmer’s garden and looked after his chickens to supplement the family’s income.
“It was while doing these duties that he noticed the visits of the farmer’s lawyer nephew. The young boy admired the visitor’s style, clothes and motorcar and decided that he too would like to become a lawyer,” wrote Conyngham.
From the motivation in 2009, penned by the “Justice for Hlophe Alliance (JHA)” and a pitch to the JSC to have Hlophe appointed Chief Justice, these harsh beginnings were also presented as a crucial bedrock of what it was that shaped John Hlophe.
“Judge President Mandlakayise John Hlophe was born in Madundube rural settlement, in Stanger on the 19th of May in 1959, the younger of two sons from poor parents, Thomas and Monica Hlophe,” wrote the JHA.
Hlophe’s father had started his working life as a security guard, “but later became a full-time practising herbalist of many exploits, including travelling barefoot for about 350 kilometres to KwaMhlabuyalingana to harvest ‘umdlebe’, a rare tree with amazing healing powers”.
His mother, from East Pondoland, was a devout Christian who worked as a sugarcane cutter and was later promoted “to become a gardener at the home of Mr Ian Smeaton, then chairman of the South African Sugar Association”.
When Hlophe graduated, the decade-long sponsorship by Smeaton came to an end.
To tell Hlophe’s story, his backers for his appointment as Chief Justice added, was “to describe the life of a working-class African child born and bred under apartheid South Africa. It is a common story of suffering, child labour, and ultimately surviving against the odds.”
In 2007 Hlophe made headlines again, this time for requesting that the Department of Transport and Public Works in Cape Town replace a Mercedes-Benz ML500 with a Porsche Cayenne S with an R828,000 price tag at the time.
Perhaps the youthful memory of Hlophe’s apparent response to the style of dress and car driven by his benefactor’s nephew inspired this investment in a vehicle as a visible symbol of having arrived.
Unlike Hlophe, however, Smeaton’s nephew would have moved through life with a considerable amount of inherited wealth to prop him up.
Meanwhile, Hlophe’s public success brought him material comforts including a home in Pinelands and a wine farm, while his hobbies include hunting.
Hlophe’s intellectual precociousness from a young age did not go unnoticed and unrewarded in the long run, despite his difficult beginnings, but in the end it was his conduct as a judicial officer that sank what could have been a brilliant and transformative career.
In the tribunal hearing in December 2020 with regard to his approach to the ConCourt judges in 2008, Hlophe had argued that it was natural for judges to talk to each other about pending cases, as long as they discussed legal principles and not facts.
It was here that the three-person tribunal, led by retired judge Joop Labuschagne, tripped up Hlophe’s path to power, saying that the principle was deeply rooted in the legal profession and “instilled through years of practice, either as an advocate or as an attorney, from whose ranks most judges are drawn”.
Hlophe of course, was drawn from academic ranks but by then he had been a judge for 13 years and should have understood this.
Hlophe had compared himself, said his fellow judges, with former president Jacob Zuma, as a victim of a system that did not want to see men like them, African, from poor, humble rural beginnings, in positions of power.
Both men’s brittle and indeed fragile sense of self, shaped and pounded by huge material deprivation and opposition to their very existence, in the end, scuppered not only themselves, but the landscape and country that shaped them.
Both men too tainted the positions that gave them great power and responsibility, the presidency and a judge presidency.
Hlophe’s lawyer, Barnabas Xulu, has since been found wanting by the courts and has been ordered to pay back R20-million in legal fees paid to him illegally by the state. Xulu’s Porsche and luxury properties have since been attached to settle the debt.
In the end, both Zuma and Hlophe held so much potential but shaped their power as a personal means to an end rather than submit themselves to the dynamic demands and pitfalls of a constitutional democracy in the making for the greater good.
While Hlophe has always publicly championed women and the poor, it is his own alleged involvement in wife battering, according to Goliath, and his 2008 ruling that saw the eviction of 20,000 Joe Slovo, Langa, shack residents to make way for Lindiwe Sisulu’s N2 Gateway housing project that walk the walk and not the talk. DM
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