JUDICIARY IN CRISIS ANALYSIS
John Hlophe — the Judge President who fought the law; decades later, the law won
The faiths and high hopes that a young Mandlakayise John Hlophe carried from KwaDukuza via Cambridge and finally as Judge President of the Western Cape, appear to underpin the lack of appetite for more than a decade to hold him accountable.
So much collateral damage could have been spared had the Judicial Service Commission (JSC) adopted a less supine position in Western Cape Judge President John Hlophe’s freestyle slalom through democratic South Africa’s fledgling institutions of justice.
Four years after his appointment in 2000 as the youngest Judge President, South Africa’s roller coaster — with Hlophe in the hot seat — crept up the first chain hill towards the steep dip of what became known as the “Oasis Group retainer scandal”.
While Hlophe and those legal pilot fish still in his pond — Barnabas Xulu, Paul Ngobeni, Vuyani Ngalwana and others — view his long, public and indeed tragic fall as tantamount to a “political lynching”, a Judicial Conduct Tribunal (JCT) has ruled otherwise.
This is a moment of truth not only for South Africa’s commitment to the rule of law, but also in understanding the political theatre that has plagued the country’s judiciary for almost two decades.
Read more in Daily Maverick: “Judicial Conduct Tribunal recommends impeachment of John Hlophe for gross misconduct”
In April 2021, 17 years after “Oasis” and 13 years after Hlophe’s attempt in 2008 to influence Constitutional Court judges seized with Jacob Zuma’s corruption probe matter, a JSC tribunal added a footnote for the history books.
Announcing its unanimous finding that Hlophe was guilty of impeachable conduct, it noted:
“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 Nkabinde and Justice 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.”
Hlophe, while consistently paying lip service to and apparently embracing the values of the Bill of Rights and the Constitution, has, from the get-go, publicly behaved in a manner contrary to his declarations of fidelity to the rule of law or even common human decency.
Carrying what he believed to be a “mandate”, Hlophe approached members of the Constitutional Court, suggesting their need to “understand our history”.
Hlophe’s later accusations that the justices had lied, that they were part of a witch hunt and subservient to unseen political forces have been part of a relentless bombardment in affidavits and various statements.
Hlophe and his legal disciples, through his comments and their amused reception of these over the years, appear to have picked up on a brand of nasty populist rhetoric also deployed by Zimbabwe’s former founding president, Robert Mugabe, as the country plunged into violence and economic stagnation.
Mugabe repeatedly referred to the rule of law as “extraneous” and “peripheral”.
Hlophe’s beautiful mind
In 2021 in an “exclusive interview” with one of Sekunjalo boss Iqbal Survé’s “protégés”, Thabo Makwakwa on The Insight Factor, a YouTube channel, Hlophe set out some of his thoughts on the law.
These were directed specifically at one pillar of the development of contemporary South African law — its Roman-Dutch heritage.
Hlophe informed Makwakwa that these laws had been promulgated and established “when we were not empowered” and thus black South Africans had played no role in their making. Fair enough.
His mission, proclaimed Hlophe, was to “Africanise” or “decolonise” the law, to transform the judiciary and do away with “all the Latin nonsense” and long judgments ordinary people could not understand.
Hlophe added sagely that he regarded the law as “an excellent tool to engineer social change”.
In what must rank as one of the most arse-creeping responses of all time, a star-struck Makwakwa can be heard murmuring “wow, that’s beautiful” or “what a beautiful response” to Hlophe’s responses.
Makwakwa, who describes himself as an “investigative journalist”, forgot to set out for his viewers exactly where the development and adoption of the Freedom Charter, the Bill of Rights or the Constitution fit in and how this has served to upturn many unjust laws.
To say nothing of the introduction of methods of accountability and the curbing of state power over the lives of free citizens. Here the judiciary is the bedrock.
Makwakwa also seemed oblivious to the pivotal role ANC president Oliver Tambo played in setting up an ANC constitutional committee in 1985 headed by Pallo Jordan, André Odendaal and Albie Sachs.
This vital history has been documented in the recently published Dear Comrade President by Odendaal.
Read more in Daily Maverick: “André Odendaal’s new book on Oliver Tambo and his secret think-tank”
But Hlophe (and Makwakwa) and those who seek to “cleanse” society of apparent foreign modes of being and thinking, seldom let facts get in the way of a free-range attack on the judiciary, judges and the rule of law.
Particularly when they find themselves in a corner having to account.
Hlophe’s reputation is in tatters and as a man known for his ill humour and rudeness, he was never going to go down without at least shouting revolution from the hilltops, even after more than two decades of democracy and freedom.
A month before Hlophe’s suspension by President Cyril Ramaphosa in December 2022, the Judge President addressed the Black Lawyers Association in Durban.
Read more in Daily Maverick: “Ramaphosa suspends WC Judge President John Hlophe pending Parliament’s vote on his removal”
There, he urged a Mozambican-style nationalisation of South African farmland. He exhorted black South Africans to talk about land “at least three times a day”.
“When you wake up in the morning and you are having breakfast with your children and your wife, tell them this land was stolen and there is the thief.”
He added: “If you look at other nationalities, the Jews for example; wherever they are, they talk about the genocide. Jewish children know about their history, they know about the genocide. Why can’t we talk about land?”
“White colonisers”, added Hlophe, still owned the land and should be made aware of this daily.
That mechanisms have existed for land redistribution and have done so for more than 27 years is another chunk of history conveniently left aside while entertaining a like-minded audience who have invited you as a guest speaker.
The Judge President of the Western Cape’s comments were, of course, intended to be “sensational” and indeed hurtful and he was well aware of their effect and the perception of brimming violence in his description of white South Africans as “land thieves”.
With regard to the brand of swift nationalisation of land and industry in Mozambique, post-independence, Hlophe forgot to mention that Samora Machel, when criticised by the West for his action, responded: “We did not nationalise the factories or the land — you abandoned them, you fled.”
Bad, bad Judge Kriegler
The head of the perceived Hlophe “lynch mob” has been identified by his supporters and the Judge President as former Constitutional Court judge Johann Kriegler, who was the first, way back in the 2000s, to call into question Hlophe’s fitness for the Bench after the Oasis matter.
It was the opposition African Christian Democratic Party (ACDP) which had raised questions about Hlophe’s relationship with the global fund management company.
In November 2000, Hlophe was appointed to the board of the Oasis Crescent Retirement Fund and was paid around R500,000 in total, it was later revealed.
At the time, the JSC declined to hold Hlophe to account, but more on that shortly.
As late as August 2022, the JSC demanded from Kriegler an apology for his consistent warnings from 2009 and into the 2020s about Hlophe’s injurious conduct and his lack of fitness for the Bench.
Judge Dumisani Zondi, who deliberated on a complaint against Kriegler lodged with the JSC by Hlophe’s one-time lawyer Vuyani Ngalwana, found the former Constitutional Court judge’s public evaluation of Hlophe “uncollegial”.
Judge Zondi was a fellow student with Hlophe at Fort Hare and the two men have not hidden this history.
Kriegler is appealing against Zondi’s order.
The ghost of Dullah Omar
South Africa’s first minister of justice, the impeccable Dullah Omar, held office between 1994 and 1999 before being appointed as minister of transport.
While Hlophe has always insisted Omar had given him “verbal” permission to receive a monthly retainer from the private company which, incidentally, often litigated in the division he headed, no evidence of this has ever been presented or located.
But simple mathematics made Hlophe’s claim that Omar gave him permission impossible. The Oasis-administered retirement fund of which Hlophe was a trustee was established in 2000, the year after Omar left office.
Omar would not have been able to offer any permissions or guarantees as he was no longer in office, and it was highly unlikely that the straight-up Omar would not have seen the flashing red lights with knobs on.
Omar died in 2004 — the year Hlophe set sail for Impeachment Hill.
Three years later, in 2006, by the time Hlophe had to account for the Oasis matter, the JSC said it had to accept Hlophe’s version, with Omar no longer around to contradict or confirm it.
An undisclosed majority of the JSC opted to let Hlophe off the hook, offering “insufficient evidence” as the reason.
The JSC has always maintained that it did not receive “discovery’ documents from Oasis which reveal the damning evidence of the discrepancy in the dates.
Hlophe began to dig himself a slow grave, although he may not have thought so at the time, when he granted permission in 2004 for the Oasis group to sue a judge in his division, Siraj Desai.
Desai lived in Walmer Estate, Cape Town, where Oasis had planned a development. As a resident, Desai had spoken out at a community meeting. It was then that the group approached Hlophe to take on Desai.
The long passage of time and the deluge of JSC matters that have followed Hlophe into suspension have obscured some of the detail of the Hlophe/Oasis matter in the fog of lawfare.
Hlophe’s public/private partnerships
In 2007, the Mail & Guardian obtained discovery documents that the Oasis financial group had been required to file in its ultimately aborted attempt to sue Desai. These set out that Oasis had first asked Hlophe for permission to sue Desai in 2001, a request that was initially denied by the Judge President.
Two months later, Oasis paid an “advisory fee” of R25,000 to Hlophe and continued doing so while pressuring him with regard to Desai.
Journalists Nic Dawes and Pearlie Joubert wrote: “Hlophe received at least nine letters from Oasis’s attorney, Grant van Niekerk.
“In a letter to Hlophe in January 2004, Van Niekerk wrote: ‘We are under immense and sustained pressure from our client to press you, Judge, for your reply. Questions have been asked whether Judge Desai is above the law and whether time is the magical elixir which will make our inquiry disappear.”
By August 2oo4, Hlophe had already received R292,500 and Oasis was still keen to sue Desai.
Van Niekerk, wrote the M&G, placed on record a conversation between Hlophe and Oasis chair Nazeem Ebrahim, “wherein you had requested that you be given an opportunity to discuss the matter with certain key figures”.
According to Van Niekerk, Hlophe had claimed he would discuss the matter with the then minister of justice, Penuell Maduna “and more recently with Bridget Mabandla, another senior person from the Justice Department”.
Mabandla’s spokesperson said no record of such a discussion existed.
Hlophe clearly saw no conflict of interest in granting Oasis leave to sue Desai.
The later 2007 finding by the JSC that there was “insufficient evidence” in the Oasis matter to suggest Hlophe had been unethical amounted to a sort of blessing.
It appeared the commission felt it should treat Hlophe as special; he was, after all, a jewel in the legal crown.
For Hlophe, the road to Chief Justicedom was open. It was just a matter of time.
Skop, vloek en donner
Hlophe’s subsequent, numerous and often tawdry encounters with the JSC through his own complaints and those of fellow judges — ranging from alleged assault to racial slurs and name-calling — have deeply corroded the dignity of the judiciary and systems of accountability.
His actions have undermined the very purpose of the JSC, which is to prevent perceived and real political interference in the judiciary.
In his appeal against the JSC tribunal’s finding of gross misconduct, Hlophe sought to paralyse the entire system of accountability, suggesting every single judge in the country was compromised and had no right to sit in judgment.
Judges Aubrey Ledwaba and Margaret Victor and the acting Judge President of the Gauteng High Court, Roland Sutherland, dismissed Hlohpe’s appeal in May 2022 and castigated him.
The court found that he was not “untouchable” and that a finding by the JSC of gross misconduct by a judge “is unprecedented”.
“Its impact on the judge is self-evidently devastating,” added the court and as a senior Judge President, Hlophe should have been “sensitive to the rigid north star for judges performing their duties impartially and without fear, favour or prejudice”.
Hlophe’s “litigation mission” was really aimed “at avoiding the far-reaching and devastating consequences to him personally should he be impeached”.
So, aged 36, in 1995, John Hlophe made history when he became the youngest black judge appointed to the Western Cape Division.
In 2023, Hlophe again will be at the forefront of South African legal history as he faces a parliamentary impeachment inquiry for gross misconduct.
Race and racism Hlophe’s lifeblood
Kriegler’s comments that Hlophe was unfit for the Bench were later supported by the Cape Bar Council, which released a statement to this effect back in 2004.
It incensed the Judge President.
That same year, Hlophe submitted a report to then Chief Justice Pius Langa purportedly exposing deep racism in the division and lashing out at legal icons including Arthur Chaskalson, George Bizos and Langa.
Race and racism have been the architecture upon which Hlophe has built the tone of his tenure. Apart from complaining about it, he himself has also been accused of calling a colleague “a white piece of shit”.
Hlophe has also been charged by his deputy, Patrica Goliath, of insulting her as a “non-entity”, which, ironically, is how the apartheid government viewed black South Africans.
For those unaffected by the wounds apartheid branded on the hearts, minds and souls of black South Africans who suffered under its ruthlessness and its dismissive and fast-held belief in racial and male gender superiority, perhaps an American joke will serve to create the atmosphere in the room.
Some years ago the New Yorker magazine published a cartoon which reflected the history and the times. It depicted a group of men with a single woman (all white in this instance) seated at a boardroom table in a skyscraper. The caption reads: “That is a very good point Miss Jones, we will wait for one of the men to make it.”
There was/is a hierarchy out in the world. At its apex, white men who had filed their way to the top for ages. Then white women, then black men, then black women.
There is no doubt that when Hlophe arrived in Cape Town first as a strapping young judge and then being appointed Judge President straight out of academia with no court experience, he would have suffered countless micro-aggressions and the expression of unconscious assumptions.
There is no doubt this triggered in Hlophe a bitterness and resentment which later came to consume him. He now seems to have found an outlet in populist rage.
Hlophe’s early world
John Hlophe’s beginnings as the son of a KwaDukuza traditional healer/security guard and a domestic worker as well as his academic accomplishments, including a PhD from Cambridge University, and finally his leadership of the Western Cape Division marked an extraordinary trajectory.
Something to be proud of and to celebrate in a young democracy where the transformation of state institutions was and is critical in establishing the legitimacy of that democracy and the state.
Hlophe was the first judge to be appointed straight from academia to the Bench. In the 1980s, when universities were off-limits to black South Africans, it was a white farmer, Ian Smeaton, who persuaded Exton Burchell, then head of law at Pietermaritzburg, to accept Hlophe.
Hlophe’s parents as well as Hlophe himself worked on Kearsney, Smeaton’s sugarcane farm.
Like Chief Justice Raymond Zondo, who also grew up poor in rural KwaZulu-Natal, Hlophe depended on benefactors to be given a key to his full potential.
Hlophe tenderly remembered Smeaton after his death in 1986, recalling: “He spoke to me like a father speaking to his son and said how proud he was of my achievements and that I had not let him down. We spoke about my studies and my overseas experiences. He spoke about the farm and the fact that he was not in the best of health. At the end of our talk, he asked his chauffeur to take me back.
“I would have loved to have been photographed with him as the person who put me where I am today.”
Several currents in 2004 led to a turning point for Hlophe.
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This was the year that a majority ruling by the Western Cape High Court 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 had penned the majority ruling which had 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, SCA 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.
That the pharmaceutical companies directly approached the SCA, bypassing his division, had deeply irked Hlophe; and even worse, the star silk Jeremy Gauntlett, whom Hlophe had praised highly only months before, had acted for the pharmaceutical companies.
Only two months before, Hlophe had written to the then minister of justice, Brigitte Mabandla, recommending Gauntlett’s appointment as an acting judge in the division.
In his report on racism in the Western Cape Division, Hlophe confirmed that for him, “It all started with the New Clicks matter.”
The ubiquitous Mr Paul Ngobeni
A driving force behind a 2009 motivation by the Justice for Hlophe Alliance that Hlophe be appointed Chief Justice was Paul Ngobeni.
His is a name readers might recognise as having featured prominently in suspended Public Protector Busisiwe Mkhwebane’s Section 194 impeachment inquiry.
Read more in Daily Maverick: “Wrong side of truth plus incompetence – documents reveal why Busisiwe Mkhwebane keeps losing in court”
Ngobeni, who is not registered to practise law in South Africa, advised and was handsomely paid by Mkhwebane for his input in several massive and high-profile cases she has lost in the courts.
Hlophe’s early association with the SA-born and US-trained lawyer who returned to South Africa in 2007 after facing criminal charges in the US and who was disbarred in that country in 2011, would endure throughout Hlophe’s scandal-ridden career.
Each time, Ngobeni has mounted a full-on attack on the judiciary and other judges as the only solution to sweeping Hlophe to some imagined victory and saving him from an unidentified “lynch mob”.
Ngobeni vehemently fought for Hlophe to continue to head the division in spite of the Oasis infringement and what it meant.
Hlophe and Ngobeni have never hidden their support for former president Jacob Zuma and his more than two-decades-long entanglement with the courts in relation to Arms Deal corruption charges and his refusal to appear at the Zondo Commission of Inquiry.
The law held in the end
In December 2022, President Cyril Ramaphosa finally suspended Hlophe after a recommendation by the JSC that this be done while he faced an impeachment inquiry.
Announcing the suspension, Ramaphosa said: “The JCT established that Hlophe’s behaviour seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court and undermined public confidence in the judicial system.”
The JSC has now referred the matter to Parliament for the National Assembly to institute impeachment proceedings against Hlophe.
And so history will be made, for all the wrong reasons, but it will show, in the end, that South Africa’s Constitution, while tested to the limit by the likes of Zuma and Hlophe, has held fast, but not without being scarred and bruised. DM