In April 2021, some 13 years after Judge John Hlophe visited judges of the Constitutional Court, allegedly seeking to influence the decision that the court was about to make with regard to Jacob Zuma, the Judge President was found guilty of gross misconduct as envisaged in terms of section 177 of the Constitution.

Notwithstanding the tenacious efforts of some of his supporters on the Judicial Service Commission (JSC), that body by majority vote confirmed that Judge Hlophe should be impeached, which decision will ultimately lie with Parliament. On 4 July 2022, in keeping with its tortoise speed in respect of judicial accountability, the JSC finally recommended that the President should suspend Judge Hlophe, pending the final determination of the impeachment proceedings.

It took a further five months for the President to finally follow this recommendation. Unlike in the case of the Public Protector, the President can hardly stand accused on this occasion of an overly expeditious decision. Not unexpectedly, however, the EFF immediately contested the decision of the President, contending that there is a need to “remove Ramaphosa as President… and failure to do so will result in this country losing respected and qualified black intellectuals, professionals and jurists in his quest to surrender South Africa to his handlers”.

Doubtless, this attitude will be replicated by the usual coterie of similar voices, who, as with the EFF, seek to reduce the judiciary to a populist Playstation in which its judgments and a consistent commitment to the value system of the present Constitution, being the promotion of a society based on equality, dignity and freedom and adherence to the principle of accountability of power, will be but distant cousins.

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Take the reaction to Phala Phala as an example. Were the protests against President Cyril Ramaphosa and the enthusiastic embrace of so fundamentally flawed a report produced by the Section 89 panel, which is hardly worth the paper on which it is written, articulated by parties with a long-standing commitment to open, transparent and honest government, this impeachment lobby would have some credibility.

Had these parties, together with the ANC members who supported the panel, all protested against the VBS scandal, the Digital Vibes fraud and the decade of State Capture which resulted in the plunder of enormous sums of taxpayers’ money, there would be room for a serious engagement with this group.

The same expedient rhetoric will doubtless now be directed against the suspension of Judge Hlophe. It is astounding to claim the suspension of Judge Hlophe represents the loss of a highly respected jurist. But by what standard should judges in this country be evaluated?

Guilty of gross misconduct

Apart from a unanimous decision of the Judicial Conduct Tribunal which found Judge Hlophe guilty of gross misconduct, there was the case of Judge Hlophe, being the alleged beneficiary of some R10,000 per month in consultancy fees paid by Oasis Asset Management, a matter which has never been satisfactorily explained. There was the case of Judge Hlophe finding against the claim of Old Mutual in which he failed to recuse himself in a multimillion-rand lawsuit in which his attorney Barnabas Xulu had represented Matthews Mulaudzi, who was the defendant and had been accused of defrauding Old Mutual of R48-million.

One only has to read the unanimous judgment of the Supreme Court of Appeal, authored, I might add, by one of our finest judges, Judge Nathan Ponnan, who does represent an exemplar of judicial excellence, to realise that both in his refusal to recuse himself and the manner in which he handled the case, this was a case which demanded an investigation of judicial misconduct.

Then we have the accusations by Deputy Judge President (and the current acting Judge President) Patricia Goliath of significant abuse that she suffered at the hands of Judge Hlophe. Presumably, when populism reigns, abuse of women is of no consequence!

There is a further complaint, which still has to be determined by the JSC, as to whether Judge Hlophe is guilty of gross misconduct with regard to the alleged assault of Judge Mushtak Parker.

This chronology of Hlophe’s history elides over his jurisprudential record. Remember, the man who now speaks in public of the theft of land once evicted 20,000 poor black people from the Joe Slovo settlement.

Let us be clear: that there is fundamental structural racism in our society in general and within the legal profession, in particular, represents an urgent challenge which must be solved. But that fight has nothing to do with the conduct of one single judge who has built an impressive record which runs so violently against the values of a truly transformed democracy.

Even if it could possibly be argued that this litany of evidence against Judge Hlophe is unreliable, the fact remains that he was unanimously found guilty of gross misconduct by the Judicial Conduct Tribunal. Until that decision is proved to be wrong — either by the seemingly endlessly delayed appeal that Judge Hlophe seeks to launch before the Supreme Court of Appeal against the Full Bench decision of the Johannesburg High Court to dismiss his review application of the decision of the JSC to seek his impeachment, or a decision by Parliament is taken that he should not be impeached — a suspension is an obviously correct decision.

It stands to reason that the integrity of the judicial system is far better promoted by Judge Hlophe stepping aside on full pay until such time as these decisions are finally taken.

Judge Hlophe has sought to bolster his case with recent speeches which replicate the populist discourse and are clearly designed to garner populist support. This dust cloud should not obscure the fundamental issue: until the decision is taken that Judge Hlophe is not guilty of gross judicial misconduct or that he will not be impeached by Parliament, the judiciary’s integrity is preserved by the judge engaging in garden leave rather than in his continued highly controversial attempts to lead a high court. DM