The calls from various quarters for the resignation of the Cape Judge President, John Hlophe, would appear to have fallen on deaf ears.
This cannot be allowed. If left unanswered or if not properly and sensitively handled, the current situation has the makings of a Greek tragedy since the functional situation of the Judge President, is for all practical purposes, untenable.
He does not have the support of many of his own Bench, despite mischievous propaganda to the contrary. His presence is a divisive influence.
The unique spectacle of him giving evidence contradictory to that of Judge Siraj Desai in a civil case was narrowly avoided when Oasis withdrew its defamation claim against the latter.
Some of his judges choose not to participate in his weekly judges' meetings. Others are not even seen in the judges common room.
He no longer commands the respect of the legal fraternity. He is under fire from the Cape Bar Council and some of its leading silks (together with leading academics) have publicly called for his resignation.
The resultant deleterious effect of all of this on the litigating public and investor confidence is incalculable.
So what is the reason for this intolerable situation? What are the misdemeanours that render him unsuitable to head a Provincial Division of the High Court?
Some of Judge Hlophe's misfortunes stem from his "Report on Racism in the Cape Provincial Division" of November 19, 2004, leaked to the media shortly thereafter. In this report he, falsely or erroneously, accused several leading judges and a former judge president of the Cape High Court of racism.
The same serious accusation was unjustly levelled against leaders of the Bar, including Jeremy Gauntlett SC and Henri Viljoen SC, both of whom have served with distinction as Chair of the General Council of the Bar and are pillars of propriety and rectitude. The report received the scrutiny of the Heads of Court who subsequently found that:
"It is necessary to point out that the allegations in the report by Hlophe JP against individual judges and some of the members of the legal profession have, in general, been refuted by the persons concerned."
Notwithstanding this adverse finding, the Judge President did not retract the report. Neither has he ever publicly apologised to those he falsely or erroneously accused in public of being racists.
Although the issues around the Oasis debacle which impaired his impartiality have been widely ventilated, vital aspects which reflect on his integrity remain swept under the carpet.
No explanation has been made public for the transmutation of what the Judge President initially called moderate "out of pocket expenses" into the massive fees actually paid by Oasis to him. Neither has the manner in which these monies were reflected in his annual income tax returns been revealed. Accountability and transparency cannot be allowed to be conspicuously absent.
Added to this is the executive-minded manner in which the litigation between Manto Tshabalala-Msimang and the pharmaceutical industry was mishandled by Judge Hlophe.
First he engaged in a vitriolic and pointless spat about the identity of the author of the judgment of his colleague Yekiso J, in which he concurred.
Then, to compound matters, he reserved judgment in the application for leave to appeal which followed upon the 2 - 1 split Bench finding in the court over which he presided.
The test in such an application is whether there is a reasonable possibility that another court could come to a different conclusion to that of the majority. Leave ought to have been granted on the turn.
The Deputy Judge President had given a closely reasoned minority judgment that made it self-evident that another court could agree with her. Instead, the matter was delayed for so long that the applicants approached the Supreme Court of Appeal directly and on the basis that by his inaction or obstructiveness Judge Hlophe had constructively refused leave to appeal.
He gave short shrift to inquiries emanating from the presiding judge in the Higher Court and later, when his decision was reversed on appeal, announced publicly that he "couldn't care less" about the finding of the Supreme Court of Appeal setting aside his ruling.
This is certainly a novel approach to being corrected by a higher court, so contemptuous that it should not have been allowed to go uncriticised.
Next is the exchange at the Newlands cricket ground where Premier Rasool, Cameron Dugmore, his MEC for Education and the Judge President were the guests of Norman Arendse SC, then Chair of the General Council of the Bar and cricketing supremo too.
According to Arendse, who quite properly reported the incident to the then Chief Justice and to Judge Thring himself, Judge Hlophe told him that he had appointed Judge Thring to preside in the Mikro school case (in which Dugmore was a party) because he could be expected to "f**k it up" and the matter could be fixed on appeal.
Despite a report to the contrary in the Sunday press, Arendse has never denied that he told the two judges what Judge Hlophe had said. He did deny telling the story to the press, but that is quite different to contradicting his own report. There is corroboration for Arendse's version from Geoff Budlender to whom Judge Hlophe conveyed views of similar import a few days later.
Before the JSCC, Judge Hlophe denied Arendse's account and presented a diluted version of what went on for which he was, in any event, made to apologise to the three senior judges who interviewed him. Notwithstanding this apology, Judge Hlophe has never apologised to Judge Thring.
Finally there is the Joshua Greeff incident in which Judge Hlophe is alleged to have referred to Greeff as "a piece of white s**t, ... who should go back to the Netherlands".
Judge Hlophe subsequently denied on television that he had uttered these crude racist remarks. However, Dirk Uijs SC and attorney Greeff are both on oath to say that he did. Either they have perjured themselves or Judge Hlophe lied publicly on television. But after the hue and cry died down, with all protagonists sticking to their guns, Uijs was appointed as an acting judge in the High Court over which Judge Hlophe presides. Constitutionally, this appointment can only be effected after consulting with him.
What this means is that either Judge Hlophe approved the appointment of a man who must have perjured himself if Judge Hlophe's denial of the the Greeff incident is true failing which his public denial is false. Either way, his continued leadership of the second most active High Court in the country is intolerable.
Our constitution enshrines the values of accountability, responsiveness and openness. It demands that all judicial officers take an oath to uphold these values and it enjoins the executive, the legislature and all organs of state to ensure the dignity and effectiveness of the courts.
The Judge President has acted in a manner that is neither accountable, nor responsive, nor open. His conduct has impaired the dignity and effectiveness of the courts. His continued presence can thus no longer be tolerated either by the executive or by the legislature or by all citizens, whose right to have their disputes adjudicated by a fit and proper person is violated by his continued presence.
- Paul Hoffman SC is the director of the Centre for Constitutional Rights, Cape Town.