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Judge Hlophe’s future uncertain after Tribunal’s guilty verdict

Judge President John Hlophe’s fate lies with the Judicial Service Commission. File picture: Ayanda Ndamane

Judge President John Hlophe’s fate lies with the Judicial Service Commission. File picture: Ayanda Ndamane

Published Apr 12, 2021

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Cape Town - Western Cape Judge President John Hlophe’s fate lies with the Judicial Service Commission (JSC) after the Judicial Conduct Tribunal found him guilty of gross misconduct as per section 177 of the Constitution.

This matter concerns a complaint by 11 justices of the Constitutional Court against Judge Hlophe. The complaint was lodged nearly 13 years ago, in May 2008. At the time then ANC president Jacob Zuma was challenging the Scorpions’ search and seizure warrants used to gather 93 000 pages of corruption trial evidence against him.

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In June 2008 Judge Hlophe lodged a counter-complaint against the 11 judges. He accused them of having undermined the Constitution by making a public statement alleging improper conduct on his part before properly filing a complaint with the JSC.

He further complained that, by filing the complaint even before they had heard his version of the events, they had violated his rights to dignity, privacy, equality, procedural fairness and access to courts.

The Tribunal consisted of retired Judge Joop Labuschagne, previously of the Gauteng Division of the High Court, Judge Tati Makgoka, a judge of the Supreme Court of Appeal, and Nishani Pather, a practising attorney.

The Tribunal’s report said: “Given the length of time it has taken to determine the merits of the complaint, it is prudent to give a full account of the undoubtedly inordinate delay. Much of the delay was due to litigation brought by one or the other of the main parties in the matter.”

Based on the Tribunal’s findings, the JSC will now have to sit and decide whether to impeach the judge or recommend some other sanction.

Freedom Under Law chairperson Judge Johann Kriegler said: “In condemning this conduct in ringing and unambiguous language, the Tribunal has finally put an end to 13 years of denial, obfuscation and delay.

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“This fully endorses the complaint laid by the justices of the Constitutional Court in 2008 and vindicates their integrity.

“Judge Hlophe’s conduct in privately calling on two justices and trying to influence their judgment in cases involving Jacob Zuma was grossly improper. So, too, was his vilification of Chief Justice Langa and Deputy Chief Justice Moseneke.

“The Tribunal’s decision also vindicates Freedom Under Law’s intervention, without which the complaint would have been buried by the JSC a decade ago.”

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Freedom Under Law chief executive Nicole Fritz said: “It is hard to imagine a more serious complaint than that in which all the then judges of the Constitutional Court alleged an attempt of improper interference by JP Hlophe.

Judges Matter campaign research and advocacy officer Mbekezeli Benjamin said the JSC could recommend that President Cyril Ramaphosa suspend the judge.

“In previous cases, most recently those of Judges Mushtak Parker and Nana Makhubele, the JSC has decided to suspend those judges in order to allow them an opportunity to devote their full attention to the complaints against them.

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“Hlophe will be given a chance to submit his own views. The JSC may, however, as we have seen in the past, find that the conduct is not gross misconduct and recommend a lesser punishment.

“If they do recommend that Hlophe be removed, they will refer it to the National Assembly, which, on a two-thirds majority, may vote to remove Hlophe from office,” said Benjamin

The spokesperson for the Helen Suzman Foundation, Chelsea Ramsden, said: “We welcome the findings of the Tribunal and we eagerly await the next steps that need to be taken to bring this matter to its final conclusion.”

This is not the only matter of Judge Hlophe’s before the judicial authorities. In March, a judge recommended that the Judicial Conduct Committee (JCC) set up a tribunal to investigate a claim that Western Cape Deputy Judge President (DJP) Patricia Goliath interfered in Judge Hlophe's marriage.

Judge Nambitha Dambuza, who had been tasked by the JCC to look into the dispute between DJP Goliath and Judge Gayaat Salie-Hlophe, found that allegations against Judge Goliath were worth further investigation.

Judge Hlophe’s lawyer Barnabas Xulu, who usually speaks on his behalf, had not responded to calls seeking comment by the time of publication.

Cape Argus

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