Whenever the situation in South Africa seems particularly bleak and depressing – sort of like right now – you can trust that there’ll be a letter circulated by some high-profile figure or an opinion piece from a well-respected journalist about how we should all count our blessings: those blessings typically being a vibrant and robust civil society, an independent and courageous media and crowning them all, a world-respected and impeccable judicial branch of government.
Many who might know better have been prepared to go along with that characterisation – reckoning that South Africa’s traumatised collective psyche requires such assurance, even if miscast. But I wonder whether, once the process set in motion by Western Cape High Court Deputy President Patricia Goliath’s complaint against Judge President John Hlophe plays itself out, there will again be ready reference to our judiciary and its management as exemplary features of our democracy.
The allegations contained in the complaint could not be more serious in and of themselves. Among other things, Goliath maintains that when it came time to allocate a hearing to the Earthlife Africa matter, challenging South Africa’s nuclear energy deals, Hlophe expressed the view that criticism of former President Zuma in this regard was unwarranted and “attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed to the former President.”
Reportedly, Goliath’s allocation of the Mulaudzi v Old Mutual matter, without the assent of Hlophe, also drew considerable opposition from Hlophe and ultimately to him depriving her of the ability to allocate any future cases. The Mulaudzi matter is of significance in that a full bench of the Supreme Court had found that Hlophe – presiding at an earlier stage of the litigation – had not brought an open and impartial mind to bear on the adjudication of the matter.
Goliath’s complaint that Hlophe seeks to use improper influence comes, of course, against a long-running and seemingly interminable Judicial Service Commission (JSC) – appointed process to determine whether Hlophe did in fact approach two judges of the Constitutional Court in an attempt to improperly influence that court’s judgement in another matter also involving Jacob Zuma and the Thint arms company.
But the weight of this complaint is not to be understood only in the allegations against Hlophe and his wife, Judge Gayaat Salie-Hlophe – against whom Goliath also levels accusation. Even if ultimately upheld, these are but two judges. And if a swallow doesn’t a summer make, so too do two judges not make for a captured bench.
And yet, searching questions have to be asked of how such a situation, if true, has been allowed to prevail at the Western Cape High Court. Hlophe, among the most senior judicial officers in this country, has been facing the most serious and concerning allegations – that he attempted to influence fellow judges on the highest court of the land – for well over a decade. The process to determine the veracity of these charges has itself been underway – intermittently – for at least a decade. And still with no definitive resolution in sight.
To what extent has the manner in which this process been managed– under the charge of the JSC, among our highest authorities tasked with the administration of justice – enabled and allowed the “climate of fear and intimidation” that Goliath alleges currently prevails in Western Cape High Court division.
And how is it that the allegations contained in Goliath’s affidavit – of physically assaulting a judge, of victimising judges, of abusing, insulting and intimidating colleagues and subordinates – been offered to the JSC by one lone voice. How, if true, can these conditions and this climate not be apparent to all those who inhabit and interact with them?
We do not expect that our judges and most senior legal practitioners be Herculean. But we do and should expect them to strive to represent fundamental tenets of justice and fairness and to object forcefully when, in the administration of justice, that are flagrantly violated.
If the allegations contained in Goliath’s complaint are true, for shame … and shame not only for Judges Hlophe and Salie-Hlophe.
Nicole Fritz is the CEO of FUL