By Lenore Oliver, Siyabonga Mkhwanazi and Sapa
In spite of the controversy swirling around Cape Judge President John Hlophe, sources say it is unlikely he will retire, as he is due for a R2-million tax-free gratuity in just over two years.
Sources believe Judge Hlophe will ride out the storm because of the big payout due to him under the law that governs judges who have served at least 15 years on the bench.
Judge Hlophe, appointed in 1995, is expected to be paid the gratuity in 2010.
For two weeks he and the Judicial Service Commission have faced a barrage of criticism after the commission decided to "discuss concerns" relating to allegations of "dishonesty and bringing the judiciary into disrepute", rather than institute impeachment proceedings, as requested by Cape Town advocate Peter Hazell.
The allegations against Judge Hlophe related to his extra-mural work for asset manager Oasis - allegedly without ministerial consent.
He later gave Oasis permission to sue Judge Siraj Desai for defamation, but the case was finally dropped.
The JSC found that it had been "inappropriate" for Hlo-phe not to mention his ties with Oasis when he gave permission.
This week nine senior legal figures wrote an open letter stating their dissatisfaction with the JSC's decision not to impeach Hlophe.
On Tuesday a number of senior members of the Cape Bar Council rallied around their colleagues who had publicly endorsed a call by retired Judge Johann Kriegler for their judge president to resign.
About 50 advocates attended a meeting on Tuesday when it was decided that the Cape Bar Council should explore possibilities on how to proceed on Judge Hlophe whom they believe is not fit for office, said a senior advocate who did not wish to be named.
The meeting had resolved to approach the Cape Bar Council to take the matter forward. He was not sure how the council would go about doing that because the JSC had disposed of the Hlophe matter.
At the University of KwaZulu-Natal in Durban, where Chief Justice Pius Langa delivered a lecture yesterday, he declined to answer questions about Judge Hlophe or the JSC's decision not to hold an inquiry concerning impeaching the Cape Judge President.
The open letter, submitted to the Cape Times, was in support of the scathing criticism of Judge Hlophe's conduct in an article written by Kriegler in the Sunday Times in which he questioned the Judge President's suitability.
On Tuesday the Black Lawyers Association lashed out at Judge Kriegler for his "unsolicited attack" on Hlophe and by implication the JSC, which had cleared him.
It suggested Judge Kriegler be rebuked or sanctioned for his "unprecedented and improper grandstanding" and "uncollegial attack" on Hlophe.
"In allowing himself to comment at all upon a matter with which the JSC was seized, and of which it has now lawfully disposed, Judge Kriegler placed himself in contempt of the lawfully constituted authority, and evinced disrespect for the members of that august body, not excluding the Chief Justice," said the BLA's judicial committee chairman, Dumisa Ntsebeza SC.
While the JSC decided not to hold an inquiry, it resolved that Chief Justice Pius Langa, Supreme Court of Appeal Court President Craig Howie and Transvaal Judge President Bernard Ngoepe meet Hlophe to raise the commission's concerns. Judge Langa indicated earlier that they wanted the meeting to take place soon.