John Hlophe, Judge President of the Western Cape Division of the High Court of South Africa. Picture: Adrian de Kock
John Hlophe, Judge President of the Western Cape Division of the High Court of South Africa. Picture: Adrian de Kock

Analysis of Judge President John Hlophe’s legal issues

By Opinion Time of article published Apr 17, 2021

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Zelna Jansen

How did it start?

On March 11 and 12, 2008, the Constitutional Court (CC) heard arguments for leave to appeal in the matters of Thint Limited, J G Zuma, Thint Holdings Limited v National Director of Public Prosecutions.

These applications concerned the lawfulness of various search and seizure operations that were carried out in 2005 at the offices of Mr Hulley and Thint, of former president Jacob Zuma. Before judgment was handed down in these matters, Western Cape Judge President John Hlophe visited Justice Bess Nkabinde and Justice Chris Jafta separately in their chambers and had discussions with them.

During the respective visits, Hlophe discussed the issues which were the subject of the pending judgments.

13 year later – why the delay?

After deliberations, the Constitutional Court lodged a complaint with the Judicial Services Commission (JSC). The JSC convened hearings on the matter in April 2009.

Due to ill health, Hlophe was not able to attend. It seems that the hearings went ahead, however, Hlophe successfully applied to the High Court to have the hearings declared void.

In August 2009, the JSC found that the evidence in respect of the complaint did not justify a finding that Hlophe was guilty of gross misconduct. The matter was dismissed. Subsequently, two separate applications were launched challenging the JSC’s decision. In March 2012, Hlophe was granted leave to appeal the two applications.

In 2010, the JSC Act was amended and a new statutory regime dealing with complaints against judges came into operation.

The amendments provided for the establishment of a Judicial Conduct Committee (JCC) and a Tribunal. The complaint against Hlophe was referred in April 2012.

However, there was disagreement about whether the matter should be dealt with under the old regime dealing with complaints.

The reason for the disagreement was that Justices Nkabinde and Jafta were of the view that the present Tribunal did not have jurisdiction and under the previous law, complaints had to be placed under oath.

The complaint in question was not made under oath. The JSC ruled that it had jurisdiction. Dissatisfied with the ruling, the justices took the matter on review. The application was dismissed on September 26, 2014.

The appeal against that decision was also dismissed in March 2016.

The Tribunal convened in July 2018, however, Hlophe successfully applied for the recusal of the then convener of the Tribunal, Judge President Musi. Hlophe argued that Musi made negative comments about him. Musi denied this, however, recused himself.

The Tribunal convened in October 2019, however, due to a dispute between Hlophe and the State Attorney regarding the latter’s fees, the matter was postponed to October 2020 and then again to December 2020.

What were the issues?

Judge Hlophe visited Justices Jafta and Nkabinde and “wanted to talk about the question of “privilege”, which in his words formed the gravamen of the NPAs case against Mr JG Zuma … there was no case against Mr Zuma without the “privileged” information and that Mr Zuma was being persecuted, just like he (Hlophe JP) had also been.”

The question turned on to whether it was permissible for non-panel judges to discuss issues with members of the hearing panel while judgment was pending.

Hlophe’s stance was that nothing prohibits such discussions. He also asserted that there was no rule that if a judge was not part of a court which heard the matter and reserved judgment, he or she was not permitted to discuss pending cases with judges of that court.

He also stated that he was not aware of the principle that prevented judges from other divisions discussing the merits of a case with the judges presiding over that case, while judgement was pending.

The Tribunal found that by referring to the fact that there would be no case against Zuma, indicated that he ventured into discussing the merits of the case, and therefore, sought to influence the justices to give a favourable outcome for Zuma.

The Tribunal found that such an attempt to influence the outcome of a court decision to be a gross misconduct.

What happens next?

In terms of section 20(4) of the JSC Act, if the JSC finds gross misconduct, it must refer that finding, together with the reasons and a copy of the report of the Tribunal, to the Speaker of the National Assembly (NA).

In terms of section 177 of the Constitution, the NA must vote for the removal of Hlophe. The removal must be supported by a two-thirds majority. If such a resolution succeeds, the President will remove Hlophe. The JSC may also advise the President to suspend Hlophe.

The gross misconduct relates only to the complaint and not court cases that Hlophe presided over. It is, therefore, unlikely that the Tribunal’s decision will have any impact on cases decided by Hlophe.

If an implication is raised, such a case or any other, will have to be reviewed and determined on the facts.

Hlophe through his attorney has indicated that he intends to take the Tribunal’s decision on review on the basis that it was illegal.

The JSC will now consider the Tribunal’s report, the possibility that Hlophe is taking the matter on review and vote on whether to refer the matter to the NA or to wait for the outcome of the review and whether to advise the President to suspend Hlophe pending the finalisation of the matter. The latter is advisable as it may bring the judiciary into disrepute to have a Judge President found guilty of gross misconduct preside over matters. It may also open the Western Cape High Court to various unsubstantiated claims.

Zelna Jansen is a lawyer and is CEO of Zelna Jansen Consultancy.

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