Hands off judge Hlophe!

Musa Xulu writes that the facts don't support the opinions of the Cape judge president's critics

Like Mr Thula Bopela (see article) and Mr Paul Ngobeni, who penned articles on the judiciary, especially touching on judge Hlophe, I too feel that the matter needs to be explored further. There is something very wrong about Hlophe's treatment. at the hands of his colleagues which leads to suspicion of professional jealousy. The detractors of Judge President Hlophe will do well to remember the old epigram by US Senator Patrick Daniel Moynihan (1927-2003) that "everyone is entitled to his own opinion, but we are not entitled to our own facts".

Here are the facts and I ask the public to judge for themselves.

Judge President Hlophe is still Judge President of the Cape High Court.

1. He has not been impeached or dismissed.

2. He has not been found guilty of any misconduct, although a complaint in that vein has been lodged against him by the Constitutional Court judges.

3. There is a complaint of gross misconduct pending against judges of the Constitutional Court, too.

4. On 30 May 2008, judges of the Constitutional Court took advertising space in the print media in which they announced that they had lodged a complaint of gross misconduct against Judge President Hlophe for improperly influencing some of their number in appeals then pending before them.

5. It was suggested by the judges that the JSC should deal with the matter on an urgent basis in the public interest and in the interest of justice.

6. A week later it emerged that no such complaint had been lodged because the JSC requested them to submit a proper detailed complaint.

7. They did so only on 17 June 2008.

8. In the meantime, Judge Hlophe, on his own volition, took leave of absence with the permission of the then Minister of Justice (Mr Enver Surty) to enable the JSC process to continue without the "spectre" of the "accused" lurking in the corridors, as it were.

9. The Judges of the Constitutional Court who are facing the same charge did not do so.

10. On the 12th June 2008 the two judges of the Constitutional Court who were said to have been improperly influenced by Judge President Hlophe told the JSC in writing that they had no intention of lodging any complaint.

11. Five days later, on the 17th of June 2008, details of the complaint were lodged with the JSC. Curiously, the two judges who five days earlier had wanted nothing to do with the complaint also signed it, this after they had been hauled into a meeting which exerted undue pressure. But, what or who made them change their minds? Or did they?

12. The two judges were represented by one set of counsel, the rest of the judges by another. Why, if they had a common purpose?

13. The Johannesburg High Court found that the judges of the Constitutional Court unjustifiably violated a number of Judge Hlophe's constitutional rights. The judges appealed to the SCA against that finding.

14. The JSC did not consider the hearing of the complaints as an urgent matter. It waited for the judges of the Constitutional Court to argue their leave to appeal in the South Gauteng High Court, and the appeal in the SCA.

15. Only after the appeal had been set down for hearing in the SCA did the JSC set down the hearing of the complaints. Suddenly it had become urgent again. As it happened, the JSC set down the hearing of the complaints for 1 April.

16. The SCA judgment was delivered only a day earlier, on 31 March. and notably they (SCA ) set aside the High Court's findings without dealing with the merits of the Judge President's complaint.

17. Judge President Hlophe told the JSC, with evidence, that he had been diagnosed with Acute Sino-Bronchitis and so would not be able to attend the hearing. He requested a postponement after showing good cause as required as per the JSC's constitution .

18. The JSC said the matter was too urgent and that it could not postpone it because it had spent a lot of money on the venue.

19. It later emerged, from a member of the JSC, that the JSC was motivated by political considerations in refusing the postponement. It wanted to "ensure that the complaints were at least part-heard so that any new members of the JSC appointed by President Zuma and government would not be able to sit in on the complaints". Why?

20. This was the last straw for Judge President Hlophe. and he consequently sought appropriate relief from the High Court. He got it. The JSC proceedings were halted.

21. The Judge President has a constitutional right to have his constitutional dispute with the judges heard finally by the Constitutional Court. The Court is not the judges rather it is the institution and Mr Bopela gave a good account of the difference between the judiciary and the judges.

22. Now the judges want to decide the case in which they are respondents. They want to deny the Judge President his constitutional right to have his dispute with them determined by application of constitutional law before an impartial Constitutional Court. How can anyone not see anything wrong with this picture?

In the past, concerned citizens have raised an issue about public servants being paid full salaries while on long suspension or "long leave of absence", while someone else acting in his position is paid the same salary (which leads to double payment). I believe that this is a waste of taxpayers' money and must be rooted out. Instead of waiting to be counted among the statistics of public servants being paid for doing nothing, Judge Hlophe's civic conscience got the better of him and he returned to work. For that he was vilified and encouraged to sit at home on a million rand salary. I believe that this is wrong but Judge President Hlophe is not to be blame since he did not create this mess. His supposed "crime" was to discuss topical legal issues with two colleagues who, neither at the time nor since then, made any protest to him about the inappropriateness of his conduct. There was none, in fact, they told the JSC in writing virtually as much. Meanwhile, the judges of the Constitutional Court have been found by the High Court to have violated the very constitutional values they have sworn an oath to uphold without fear or favour. Yet it is Judge Hlophe who is being held up for disdain and ridicule by various commentators and political parties who have clearly taken a side in this judicial fiasco.

There is much that is wrong with this picture and it would help if the authorities too would open their eyes for they will see a glaring inconsistent application of the law. Hands off judge Hlophe!

Musa Xulu is a founder member of the Justice for Hlophe Alliance

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