NEWS & ANALYSIS

The problem isn’t Hlophe, it’s the JSC

William Saunderson-Meyer writes on the latest allegations against the WCape JP

JAUNDICED EYE

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 previous allegations of serious impropriety which 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 situation — 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 even the physical assault of a fellow judge. She further recounts an incident in which she took Hlophe’s wife, “clearly distressed and in pain”to hospital, following an alleged domestic alteration.

Goliath says that following Hlophe’s alleged assault on a judge in chambers, “the judge concerned drew up an affidavit for the purpose of filing a criminal complaint. However, it appears that [Judge Taswell] Papier and another judge intervened and persuaded the judge not to proceed with the criminal complaint.” She said the incident had involved sexual impropriety and “the two judges now, regrettably, have unresolved serious allegations against their name”.

“The Division is currently divided and more seriously, a climate of fear and intimidation prevails,” goes her affidavit. “I am currently operating in an unsafe, unhealthy and oppressive working environment and request urgent intervention to enable me to fulfil my constitutional role as Deputy Judge President. My present plight, especially as a woman, is untenable.”

These claims — rejected by Hlophe’s lawyers as as gossip, rumours and information “obtained from the grapevine” — would on their own, if proven true, suffice for Hlophe to be declared unfit for office. But, no matter how reprehensible, they pale into insignificance compared to Hlophe’s alleged attempt to intervene in the judicial process to achieve political goals.

The judiciary is virtually the only institution of governance in SA that still works reasonably well and has largely resisted capture. The Zondo Commission into state capture is its virtuous example. Hlophe, on the face of it, is at the other end of the scale — an enthusiastic enabler of state capture and brazen in his attempts to undermine judicial impartiality.

Goliath says that in 2015 Hlophe tried to interfere in the legal challenge to the agreement between South Africa and the Russian nuclear agency Rosatom, by Earthlife Africa and the multi-faith agency Safcei. She claims in her affidavit that Hlophe “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, Goliath saved SA an estimated one trillion rand when the deal, struck personally between Zuma and Russian leader Vladimir Putin, was ruled unlawful since parliamentary approval had not been sought for it.

This is remarkably similar to the incident in 2008, where the full Bench of the Constitutional Court laid a complaint of gross misconduct against Hlophe after he allegedly approached a number of ConCourt judges, trying to improperly influence the court to reach decisions favourable to Zuma in four matters of corruption and bribery sprouting 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 — and, now, very slowly, is pursuing a Constitutional Court appeal. 

Neither Goliath, nor her colleagues on the Western Cape Bench, emerge from this incident with their reputations intact. One senses that she has acted only because a cascade of insults and aggravations — she tells how Hlophe called her a klein kak (a little shit) and a “rubbish” — made her daily life unbearable. 

If it was a matter of principle, which is what should concern a deputy judge president, one wonders why she did not formally complain in 2015, when Hlophe tried to influence her allocation of judges in the Rosatom case? And why did her fellow provincial division judges not only ignore incidents of verbal abuse and physical violence within their ranks and against their colleagues but covered them up? It is most worrying, also, that it appears to be common knowledge at the highest levels of the judiciary that some judges are or were — maybe they have now seen which side their bread is buttered — perfectly content to be political pawns, ready to rule to a president’s bidding.

Just a cursory scroll through John Hlophe’s 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 party political leanings 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 many complaints against Hlophe — brought from within every level of the judiciary that it has been appointed to oversee — going back to 2004. It has, so far, done everything possible to duck its responsibilities.

Hlophe’s 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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