John Hlophe, Judge President of the Western Cape. Picture: African News Agency (ANA)/ Archives
John Hlophe, Judge President of the Western Cape. Picture: African News Agency (ANA)/ Archives

South African judiciary on a 'time bomb' as Judge John Hlophe saga blows up

By Emsie Ferreira Time of article published Feb 3, 2020

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Cape Town - Retired Judge Johann Kriegler has weighed in on the latest explosive complaint against Western Cape Judge President John Hlophe, urging the appointing body of the South African judiciary to move firmly to investigate a figure who has been mired in controversy for more than a decade. 

Kriegler argued in a guest column in the Daily Maverick online publication that the public complaint by Hlophe's deputy, Judge Patricia Goliath, had set off a "judicial time bomb" that had been ticking since he was accused of trying to sway Constitutional Court judges in favour of Jacob Zuma in a criminal case against the then president in the country's top court.

Kriegler, a retired Constitutional Court judge, accused the Judicial Service Commission (JSC) of failing to respond with an appropriate sense of urgency to Goliath's complaint, in an echo of its handling of the initial complaints against Hlophe.

After Goliath filed her complaint last week, the Western Cape bar council called for Hlophe and his accuser to be asked to take special leave. But Chief Justice Mogoeng Mogoeng said he did not have power to ask them to step aside and hinted that he found the council's call somewhat populist.

Goliath's complaints ranged from her personal victimisation to the assault of two fellow judges and a fresh allegation that Hlophe tried to influence the bench in a matter related to Zuma. She also hinted at an incident of domestic violence involving Hlophe and his wife, suggesting this placed her in an invidious position where she incurred his wrath.

In 2008, when justices Bess Nkabinde and Chris Jafta complained that Hlophe had tried to intervene on Zuma's behalf, the judge president took special leave by agreement with the justice minister. In 2009, he returned to his office and resumed control of the division, famously saying that after eight months of leave he was tired of living off taxpayers' money. 

In 2009, the JSC decided not to continue its investigation into his alleged intervention on behalf of Zuma. 

The decision was not unanimous and was challenged from several quarters, including advocacy group Freedom Under Law - where Kriegler is a director. It approached the Supreme Court of Appeal, which reminded the JSC that it was compelled to probe complaints of gross misconduct against judges and set aside its decision to view the Hlophe matter as finalised. The matter then dragged on for eight years, before the JSC again decided not to take action. 

Hlophe remained at the helm of the Western Cape division, garnering as much of a reputation for his controversies as for his astute legal mind.

Goliath's complaint, contained in a 14-page affidavit, has rekindled rumblings about his tenure and about the attitude of the JSC to complaints against members of the bench. It includes an explosive suggestion that Hlophe interfered with the appointment of judges to hear a landmark case centred around bitterly opposed plans by South Africa's former administration under Zuma to acquire more nuclear power reactors.

Goliath alleges that when she was allocating judges for the matter in 2015, Hlophe told her that the criticism against the former president "with regard to the nuclear deal was unwarranted” and tried to persuade her to appoint two judges favourably disposed towards Zuma. Goliath said she resisted the pressure and the case ended in a landmark defeat for his administration.

The main opposition Democratic Alliance alleged that Hlophe had a long history of rigging the bench to influence the outcome of cases involving political matters, with interim party leader John Steenhuisen calling for his immediate suspension.

"The DA has consistently held the view that Hlophe’s influencing of the appointment of judges to politically sensitive cases ... is no coincidence. Rather, this interference is deliberate in order to influence the outcome of such cases," Steenhuisen said.

The saga took a soap opera turn after Hlophe's wife, Gayaat Salie-Hlophe, a fellow Western Cape High Court judge, accused Goliath of gross racism and of meddling in her marriage to the point of encouraging her to end it.

Hlophe's long-time lawyer Barnabas Xulu also dismissed Goliath's complaint as no more than bits of gossip and rumour-mongering. 

The Western Cape Bar Council wanted chief justice Mogoeng not only to suspend Hlophe, but also have his spouse and Goliath step back from their duties pending an investigation into the complaint.

In response, Mogoeng said he had no power to place judges on special leave, doing little to quell concerns like those held by Kriegler.

"Where I am legally empowered to act, I will not hesitate to do so. But, legality forbids that any of us acts to please the public that assumes that the power to do what they think is right has been assigned, when it is in reality not so," Mogoeng said.

The more optimistic interpretation, one legal affairs writer has suggested, is that Mogoeng intends for the JSC to probe the matter thoroughly, but for this not to play out in public.

Goliath's complaint, and private comments by members of the Western Cape High Court paint a picture of a department deeply divided and scarred by Hlophe's tenure.  

A decade ago, constitutional law expert Pierre de Vos said had Hlophe challenged the Supreme Court of Appeal's findings on his case to the Constitutional Court, the majority of judges there would find themselves in the untenable position of having been part of the initial complaint laid against him for allegedly approaching Nkabinde and Jafta.

De Vos pointed out that at the time, only four sitting justices of the Constitutional Court were not part of the original, unanimous complainant.

The Western Cape division has no power to decide the latest Hlophe matter but at least three of its members, and likely more, now find themselves caught in allegations and counter allegations unlikely to be settled as quickly as Kriegler and others would hope. 

African News Agency (ANA)

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