The eloquent, accurate and thorough dressing down of the Judicial Service Commission (JSC) by retired Constitutional Court Justice Johann Kriegler, in his capacity as chairman of Freedom under Law (FUL), although well-deserved, is unlikely to crack the case of the allegedly serial rogue misconduct of the Western Cape High Court Judge President, John Hlophe (the JP) (Daily Maverick, 3 February).

What to do about the JP’s alleged lapses has long eluded the JSC; its failure to advise the President to suspend him after his run-in with the then justices of the Constitutional Court, which dates back to 2008, is both long and lamentable. Doubly so, now that allegations, which he disputes, have emerged that he is a serial offender when it comes to protecting the interests of Jacob Zuma, a terminally wicked offence if ever there was one in any judge, because it encompasses two serious crimes: contempt of court and defeating the ends of justice.

In the early rounds of the 13 controversies listed by Wikipedia as incidents involving the JP (all of the latest complaints by his deputy Patricia Goliath, the DJP are treated as one controversial incident by Wikipedia) he was given the treatment usually reserved for a juvenile offender by the JSC.

“Mend your ways or face our wrath next time” with a gentle smack on the wrist and an avuncular smile, the JSC’s eyes averted all the while from the inwardness of the vices complained of in the JP and disputed by him.

The DJP’s new complaints are disputed by the JP and his wife, who is also a judge in his court. Truly, she is. The disputes of fact they raise, both in defence of their position regarding the DJP’s complaints and also in support of a defamation action that they say they intend to bring against her, will be difficult if not impossible to resolve without resort to oral evidence that is tested by cross-examination of the judges. They will have to give their versions to whatever tribunal hears the matter –be it a civil court in the defamation case or a disciplinary tribunal judging the complaints of the DJP and the counter-complaints of the JP and his wife.

Nadel, the Law Society and now the Western Cape Legal Practice Council are ad idem. The LPC says in its press release of 3 February 2020 that it supports the other bodies in their “entirely proper call for prompt action by the Judicial Service Commission in relation to the matters raised by the Deputy Judge President’s complaint, in terms of section 19(1) to (4) of the Judicial Service Commission Act, 9 of 1994”.

What has hitherto eluded both FUL and the JSC is finding a sensible and efficient way to hold allegedly errant judges to account. Our former public protector, Professor Thuli Madonsela, is reported to have remarked that “the notion of accountability holds government and society together like glue and it is at the heart of modern democratic processes to address the misuse of power and other forms of inappropriate behaviour”.

In South Africa, our democratic constitutional order contemplates an impartial and independent judiciary, with checks and balances on the exercise of power which, in the case of judges, vests in the JSC. We embrace the doctrine of the separation of powers between the various spheres of government that have been set up in the post-apartheid order. Our open, accountable and responsive new order is aimed at honouring inherent human dignity, promoting the achievement of equality and the enjoyment of the various rights and freedoms guaranteed to all in the Bill of Rights.

In this case, it is to the Bill of Rights that one must turn to unravel the mess that currently embarrasses the Western Cape High Court (WCHC) and all who sit, practise and litigate in it.

The litigators (principally the members of the Cape Bar) are entitled to expect fair hearings in their cases as well as administrative action that is lawful, reasonable and procedurally fair when it comes to the allocation of cases to judges. They are legally entitled to practice their profession as lawyers freely and with dignity. Many of these rights obviously apply to litigants too. The state is obliged to respect, protect, promote and fulfil all of the rights guaranteed to all in the Bill of Rights.

Assuming, as one must on the track record of the JSC, as itemised by Justice Kriegler, that nothing is done with an appropriate sense of urgency by the JSC to stop or even manage the nuclear meltdown represented by the DJP’s complaints, the JP’s alleged intransigence and the reported threats made by his wife, then what is to be done? What if the broadsides against it have no effect other than to get the JSC to further batten down its hatches?

The Bill of Rights states in section 38 that anyone (including anyone acting in the public interest, as FUL has done in the past, acting as a group, as the members of the Bar – duly represented by the Bar Council acting as an association on behalf of its members – or in their own groupings) has the right to approach a competent court alleging that a right in the Bill of Rights is threatened or infringed.

That court may grant “appropriate relief, including a declaration of rights”.

The “competent court” in this case is most obviously and exclusively the Constitutional Court, which has the express constitutionally conferred power to grant leave to a litigant to approach it directly when the interests of justice so dictate. They do so dictate in this case. The meltdown leaves the WCHC in an obviously compromised and disqualified state; the Supreme Court of Appeal only has appellate jurisdiction, while the matter cries out for urgent adjudication and management.

The need for swift finality in the matter also suggests that the right court is indeed our apex court, the guardian of our hard-won Constitution. Drawn out appeals are the last resort of “Stalingrading” scoundrels, they are not indicated when the integrity and probity of the judiciary are put at stake in the manner in which the current meltdown, laced with serious disputes of fact, has played out over the last fortnight. No appeal would lie against a ruling by the apex court.

The appropriate relief to claim against the DJP, the JP and his wife is an interim interdict restraining each of them from attending at the seat of the Court, performing their judicial functions in any way (other than to ask a colleague to hand down a reserved judgment for them) and their administrative functions in the case of the JP and DJP until such time as the JSC has finally determined all of the disputed outstanding and unresolved complaints against each of them, or until the JSC advises the President to suspend one or more or all of them on such basis as he deems meet under the powers given him in section 177(3) of the Constitution, whether with or without their pay.

The interim interdict contemplated above would obviously be on full pay so as not to disturb the security of tenure of the judges who have accused each other of reprehensible behaviour. The granting of such an interdict will serve to bolster the good name and reputation of the judiciary and will enhance its impartiality and independence too. It will remove the threat to the human rights implicated in the continuation of the status quo. If anyone, including the JSC, is so ill-advised as to oppose the granting of the interdicts needed to calm the troubled waters of the WCHC, an appropriate costs order is indicated.

The JSC needs to be reminded that its constitutional obligations need to be performed diligently and without delay. If it is unable to see its way clear, due to disputes of fact, to addressing the human rights immediately under threat due to the dispute between the DJP, JP and his wife, the legal remedy available, via litigation, to those whose human rights are threatened is in Section 38 of the Bill of Rights. DM