DM168 JUSTICE WATCH
No more Stalingrads, Judge Hlophe
Placing Judge John Hlophe on suspension would not deprive him of his considerable income and does not amount to any finding of guilt. Shockingly, the JSC would like Hlophe to continue as normal, as though nothing has happened.
First published in the Daily Maverick 168 weekly newspaper.
Western Cape Judge President John Hlophe continued his assault on the judiciary on 22 September, attempting to have a letter entertained by the high court in which he stated that no judge in the Gauteng division could hear his matter because they were “not impartial”.
That the Judicial Service Commission (JSC) has sought not to recommend to President Cyril Ramaphosa that Hlophe, found guilty of gross misconduct, should be suspended, is a shadow that darkens the judiciary and erodes public trust in the administration of justice.
Hlophe was not only found to have attempted to influence Constitutional Court judges in a 2008 matter involving former president Jacob Zuma, but he has also repeatedly insulted his judicial peers and colleagues, including past and present chief justices, deputy chief justices and other judges.
On 22 September, Hlophe attempted to have a letter entertained by the Gauteng High Court in which he claimed that, because they were “not impartial”, the judges of the Gauteng division could not hear his matter.
This is a man that the JSC’s own body, the Judicial Conduct Tribunal, unanimously found guilty of gross misconduct. These findings were accepted by the JSC on 25 August.
The JSC has found Hlophe guilty of gross misconduct.
The job of the JSC is to protect the judiciary.
Why is Hlophe still there and how are we to consider his presence on the Bench in any courtroom?
Placing Hlophe on suspension would not deprive him of his considerable income and does not amount to any finding of guilt.
Shockingly, the JSC would like Hlophe to continue as normal, as though nothing has happened.
Hlophe’s abandonment in the Gauteng High Court of Part A of his application to stay the recommendation for suspension and Parliament’s impeachment process offered the perfect opportunity for the JSC to restore dignity to the long-suffering judiciary – and itself, particularly.
But, by some backroom agreement, it appears the JSC has decided to allow Hlophe to remain a sitting judge president while Part B of his application, challenging the entire JSC process, is heard at a date yet to be set. This, dear reader, is Zuma/Stalingrad, reloaded. The 569-page whopper of an affidavit Hlophe filed should be an indication of the direction in which he hopes to take this train.
In April, constitutional law expert Pierre de Vos pointed out that the JSC was “wrongly claiming it can only recommend that President Cyril Ramahosa suspend Hlophe once it has endorsed the tribunal’s report”. The report was endorsed and still the JSC did not suspend Hlophe.
De Vos wrote that the original failure to suspend Hlophe (and allowing him to participate in JSC interviews) “cannot be squared with its [the JSC’s] duty – imposed by Section 165 (4) of the Constitution – to assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts’.
“As is often the case in high profile, politically charged, cases, some politicians and politician-lawyers (and those who blindly follow them), are likely to take an unprincipled stance on this matter, opposing suspension based on their support for Hlophe and the political project they may believe he is aligned with,” wrote De Vos.
The purpose of suspension, De Vos wrote, “is to protect the independence, impartiality and effectiveness of the courts”.
Although the Constitution contains important provisions safeguarding the institutional independence of the judiciary, wrote De Vos, this was not the end of the matter.
“The independence and effectiveness of the judiciary will also be weakened when its legitimacy is eroded and when the decisions and judgments of an individual judge are tainted because the judge has been found guilty of gross misconduct.”
Zuma and Hlophe have had enough time in the legal spotlight. The public should demand that the JSC explain its perplexing decision. No more Stalingrads. DM168
Marianne Thamm is an associate editor at Daily Maverick.
This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.
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The public should demand that the JSC explain its perplexing decision. No more Stalingrads.
Great….so how do we do that ???
The whole bunch of them are a curse on this country
It’s the story of South Africa: one foot forwards, two foot backwards.
Does not CR have the power to suspend Hlophe based on the JSC’s finding that there are grounds for impeachment? Then, Parliament can consider impeachment and not procrastinate further.
cr is also an anc deployee, so he does only as he is told.
To all who observe the law, the failure to act – as the JSC clearly should – implies ( by default) complicity or worse still – cowardice . To be a judge in today’s society will always imply that you will be judged ( for your judgments) but to be judged for failing in your high duty is distasteful to say the least.
we promise to improve ….yeah right our judiciary is captured!