This account is not primarily about Cape Judge President Mandlakayise John Hlophe, although he plays a central part. It’s rather about who guards the guardians of our constitutional enterprise.
No judge in the history of South Africa has been dismissed from office. While most would agree that the judiciary under apartheid did very little to question the fundamental racist evils perpetrated by that regime, the judges nevertheless generally preserved a degree of formal independence and even from time-to-time delivered judgments which undermined specific acts of executive autocracy. Their behaviour on and off the Bench was generally above reproach.
That fact combined with the zeitgeist of the late 1980s persuaded all parties that our governmental future lay with a participative constitutional democracy, as seen in both the interim and final constitutions.
Critical to the success of any such model of the exercise of public power is the establishment of an institution whose members and decisions evoke strong public support and confidence, based on their independence, impartiality, and irreproachable conduct, both in the discharge of their public duties and in their private lives. This role is usually entrusted to the superior courts, in our case the Constitutional Court, Supreme Court of Appeal, and high courts, whose popular legitimacy is thus critical for the success of the constitutional democracy.
Given the extent and pervasive influence of their judgments, the judges must be subject to appropriate mechanisms to ensure their accountability to the constitutional values they are charged to preserve and advance. Hence the establishment of the Judicial Service Commission (JSC), whose task it is both to advise on appointments to the Bench and to receive and resolve complaints about judicial misconduct.
Thankfully, this last aspect of the authority of the JSC has not been frequently exercised, but sadly it has botched almost every serious allegation levelled against judges over the past 20 years, none more so than those brought against the Judge President of the Western Cape High Court, John Hlophe.
The chief incidents which have triggered deep controversy about Hlophe’s probity and integrity relate to his approaches to two Constitutional Court justices in May 2008 in regard to their judgments in a trial involving Jacob Zuma, and the more recent extremely vituperative complaints and counter-complaints reported in sordid detail relating to the complete breakdown between him and his Deputy Judge President, Patricia Goliath.
More of the last later, for now it is important to note that, notwithstanding several bouts of litigation initiated by both the Cape judge president and other interested parties, the allegations of gross misconduct in regard to the 2008 Zuma-Thint appeal have been found to be proven, in the well-reasoned decision of a Judicial Conduct Tribunal (JCT) consequent on a full public hearing of the matter.
A clear majority of the JSC thereafter decided to submit this outcome to the National Assembly to vote on Hlophe’s impeachment in terms of the process laid down in the Constitution, section 177. While there is a compelling case for the judge president’s suspension pending the finalisation of this matter by Parliament and the president, he remains in active discharge of his duties.
As was anticipated, Hlophe took the decision of the JSC to refer him for impeachment on review, alleging all sorts of improper and unprocedural actions by the JCT and the JSC, and throwing in a few more arguments about the eventual role of the National Assembly should it consider his impeachment.
An exceptionally strong full Bench of three judges of the Gauteng High Court delivered judgment some two weeks ago, resoundingly countering and dismissing every such argument made, and providing constructive clarity to several aspects of this unprecedented process. Hlophe has indicated that he intends to take this decision on appeal, consistent with the strategy of endless delays long since honed by Zuma and the current public protector.
Two consequences flow from this running sore on the judicial body politic. First, from a practical point of view, the management and administration of the Western Cape High Court appear to be at least negatively affected, if not in disarray. As a result of the judge president’s feud with his deputy, his widespread recommendation for the appointment of relatively inexperienced lawyers to act as judges, sometimes for repeated terms, and many questions about the allocation of judges to hear highly contentious political matters arising from the internal divisions within the ANC, there are real concerns about the administration of justice in that court.
These concerns inevitably translate into questions being asked about the fairness and justice being delivered in one of the most prominent high courts in the country and raise the question why the JSC has thus far refused to recommend to President Cyril Ramaphosa that Hlophe should be suspended from office until the misconduct proceedings against him have been finalised. The JSC has said that it is studying the Gauteng full Bench decision but has yet to do anything further. There is a compelling case for Hlophe’s suspension on these practical grounds alone.
The second consequence is of far greater impact and goes to the heart of the design, effectiveness, and legitimacy of our constitutional democratic system. The judges collectively act as the guarantor of the values of our democracy. The courts must ensure that all public power is exercised in compliance with the Constitution in all its provisions and must fearlessly hold all public office-bearers to account for their decisions and actions. To achieve these goals, the judiciary must at all times, both in their official duties and in their private lives, adhere to the highest standards expected of any public official.
The Nolan Standards applicable in the United Kingdom speak of “… selflessness, integrity, objectivity, accountability, openness, honesty and leadership”. In this country, we have since 2012 had a Code of Judicial Conduct in place, approved by Parliament. Among many obligations, it requires judges … “always, and not only in the discharge of their official duties, [to] act honourably and in a matter befitting judicial duties” [art 5(1)] and “at all times… in court and in chambers [to] act courteously and respect the dignity of others…” (art 7(b)), and so on.
Significantly, the code in its preamble reminds us that “… it is necessary for public acceptance of its authority and integrity in order to fulfil its constitutional obligations that the judiciary should conform to ethical standards that are internationally generally accepted”.
This is the crux of the matter. If judges behave badly, such as to erode public confidence in their trustworthiness and honesty, and if any departures from such high standards go unremedied, the justification for the courts’ role as guardians of our democracy is undermined.
The Hlophe saga threatens the legitimacy of the Constitution. The JSC, the president, and Parliament must act speedily and effectively to resolve it. DM