The toothless Judicial Services Commission is the real problem, not Hlophe
Opinion / 25 January 2020, 10:29am / William Saunderson-Meyer
When the Judge President of the Western Cape is accused by his deputy of gross misconduct, one has a serious, but containable, provincial crisis.
When this follows upon previous allegations of serious impropriety that remain unresolved after a dozen years, it means that the constitutional mechanisms of oversight are inadequate or have been subverted.
If nothing is now done to rectify the problem - suspension and a speedy investigation - then one has a national, constitutional crisis that goes to the heart of the judiciary’s public credibility and standing.
This week Western Cape Deputy Judge President Patricia Goliath lodged a formal complaint against her boss, Judge President John Hlophe, claiming verbal abuse, victimisation, preferential treatment of his wife, and the physical assault of a fellow judge. She also recounts taking Judge Hlophe’s wife to hospital, following an alleged domestic alteration.
These claims - rejected by Judge Hlophe's lawyers as gossip and rumours - would on their own, if proven true, suffice for the Judge President to be declared unfit for office. But, no matter how reprehensible, they pale into insignificance compared to his alleged attempt to intervene in the judicial process to achieve political goals.
Judge Goliath says that in 2015 her boss tried to interfere in a legal challenge to the agreement between South Africa and the Russian nuclear agency Rosatom. She claims that he “attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed to (Zuma)”, saying that “criticism of Zuma with regard to the controversial nuclear deal was unwarranted”.
“I immediately dismissed the idea and referred him to a Daily Maverick article in which negative aspersions were cast on his allocation in another matter. Although unhappy, he did not pursue the matter and we agreed upon the two judges subsequently appointed to hear the matter.”
By assuring an unbiased Bench, Judge Goliath saved the country an estimated R1trillion when the deal was ruled unlawful, since parliamentary approval had not been sought.
This echoes an event in 2008, where the full Bench of the Constitutional Court laid a complaint of gross misconduct against Judge Hlophe after he allegedly approached Concourt judges, trying to influence them to reach decisions favourable to Zuma in matters of corruption and bribery arising from the arms deal.
The spineless Judicial Services Commission (JSC), the very same one which will be dealing with this latest complaint, dealt with the 2008 complaint by, astonishingly, simply deciding not to pursue it. That decision was challenged by the then-premier of the Western Cape Helen Zille, who won a high court ruling in her favour. Hlophe then appealed to the Supreme Court, and lost. Now he is pursuing a Concourt appeal.
Neither Judge Goliath nor her colleagues emerge with their reputations intact. One senses she acted only because a cascade of insults and aggravations - she claimed Judge Hlophe called her a klein kak (a little shit) and “rubbish” - made daily life unbearable.
If it was a matter of principle, which is what should concern a deputy judge president, one wonders why she didn't formally complain in 2015? And why did her fellow provincial division judges not only ignore incidents but coverthem up?
A cursory scroll through his judicial career, as documented on Wikipedia, should suffice to convince that this man was never judge president material. But that’s a minor issue in a country where top judicial appointments are often based on political affiliation and ethnicity, rather than jurisprudential excellence.
The far more important matter is that of the JSC, which exists solely to appoint judges and handle complaints against them, and has repeatedly shown itself afraid to do its job. It has had complaints against Judge Hlophe going back to 2004 but has done everything possible to duck its responsibilities. His behaviour has often been reprehensible but the JSC’s behaviour is worse. It is a shameful betrayal of the Constitution that established it.
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