JSC Must Act Now and Remove Judge Hlophe

3 February 2020

Last week Judge Patricia Goliath, Deputy Judge President of the Western Cape, set off a judicial bomb when she levelled a number of serious complaints against her Judge President, the well-known Judge John Hlophe. When the Cape Bar Council suggested suspending him, the Chief Justice demurred and a day or two later the secretariat of the Judicial Service Commission (located in the Chief Justice’s office) publicly rebuked unidentified busybodies for suggesting urgent action in the matter, telling them to mind their own business and leave the matter in its capable hands.

That course of events rings a loud and profoundly disturbing bell. One of Judge Goliath’s charges is that Judge Hlophe had tried to manipulate an important case in President Zuma’s favour. Some 12 years ago the judges of the Constitutional Court levelled a tellingly similar charge against Judge Hlophe, complaining that he had lobbied two of their number to favour Mr Zuma, an accused in criminal cases they were considering. Both charges, if proven, would clearly call for Judge Hlophe’s summary impeachment. 

At the time, by agreement with the Minister of Justice, Judge Hlophe appropriately took special leave but some eight months later, without reference to the minister and with the charge still very much hanging over his head, he turned up at the office and resumed control of the court. In the hope of galvanising the Judicial Service Commission into action, I produced an op-ed highlighting the grave rule of law implications of leaving a judge under such a cloud at the helm of a high court. This, in part, is what appeared in Business Day – 11 years ago, almost to the day:

“It is perfectly clear that Judge Hlophe has no right to return to work while the cloud remains over his head. Whether or not the minister has the legal power to compel him to do his duty is something altogether different. Duties are not duties only when they are legally enforceable; nor do they cease to be duties merely because they can be ignored with impunity. On the contrary, among honourable people many duties are acknowledged as binding obligations precisely because they are not legally enforceable. This is not lawyers’ talk but elementary decency applicable to all of us irrespective of our cultural or social differences.  

“In the case of a judge the position is even clearer. Judge Hlophe is not a junior clerk in government service subject to the supervisory powers of ordinary employment. He is a judge of the High Court, an appointment which our Constitution clearly regards as special. This gives us the assurance that our judges are men and women with the necessary personal and institutional independence to uphold our rights impartially and without fear, favour or prejudice. To this end the office to which judges are appointed is specially privileged. Unlike members of the national legislature or executive, judges are not answerable to the electorate and are not subject to periodic re-election.

Unlike members of the public service, judges are not subject to civil service regulations, performance criteria or office hours. They do not rise through the ranks, are not subject to supervision or discipline at the hands of a superior, cannot be dismissed for incompetence or insubordination, and their salaries, allowances and benefits cannot be reduced. Nobody, not a judge president, not the chief justice, not the minister or even the president can tell judges when and how to do their jobs; and if judges fail to do their work diligently – or even competently – they cannot be fired (except in very special circumstances). 

“But these very important privileges are not personal privileges. They are privileges that attach to the office so as to protect judicial independence, and they go hand-in-hand with heavy obligations. What gives the office its special character is not that there are no obligations but that the obligations of judicial office cannot be enforced from outside. We rely for their enforcement on the integrity and self-discipline of the judge. 

“Accepting appointment as a judge creates a special kind of compact with society. While we entrust our judges with great freedom in the performance of their functions, they in return accept the onerous duty at all times to be worthy of such trust. Judicial ethics is therefore not about the enforcement of obligations but about integrity, restraint and the protection of the moral authority of the judiciary. It is about trust. ….

“There are indeed many obligations that attach to judicial office. They do not need to be spelt out in a contract of employment because every judge knows – or ought to know – what they are and when in doubt can consult the Judicial Code of Conduct or a colleague for guidance. In principle a judge should always, not only in the discharge of official duties, act honourably and in a manner befitting judicial office. Nothing a judge does or does not do, on or off the bench, should bring the judiciary into disrepute. In the result many things that ordinary citizens are entitled to do are not permissible for a judge. A judge should never be seen in a casino or a seedy club. A judge may not have a drink too many in a public place.

Judges never become involved in politics. They avoid public altercations and litigation. They never comment publicly on court cases. Indeed, they should avoid the limelight at all times. Judicial independence is not licence. It has its own special framework of dos and don’ts by which judges are ethically bound. At the core of all these obligations is the obligation to preserve the integrity of the judiciary. ….

“For the present the public clearly cannot be expected to accept that Judge Hlophe hears their cases or heads the administration of justice in the Cape High Court. While he stands accused by his peers of seeking to subvert the course of justice, he simply does not enjoy the requisite trust in his integrity. We are not concerned here with the presumption of innocence. The issue is public confidence in the administration of justice. ….

“A judge president, besides actually hearing cases in court, exercises numerous discretionary powers affecting the interests of the public, the legal profession and the judiciary. The impropriety of the judge president’s insistence on occupying the office while accused of such a serious charge is all the greater. The suspicion alone disqualifies him. 

“The judge president has no more right to continue in judicial office than a suspected paedophile has to continue running a nursery school. Surely it would seriously undermine public confidence in the law enforcement system if a police station commissioner on bail for corruption were to remain at his desk pending his trial? And surely the need for public confidence is all the greater where we are dealing with the head of the judiciary in the Western Cape? ….

“If his own conscience does not persuade him to stay away from his office, the Judicial Service Commission should be urgently convened to consider a recommendation to the President under section 177(3) of the Constitution that he be suspended from office pending the determination of the charge against him.”

Predictably, in 2009 Judge Hlophe’s conscience did not persuade him to stand down. Less predictably – but not surprisingly – the JSC’s response was a disgraceful cover-up. That nearly succeeded. Had the Supreme Court of Appeal, on Freedom Under Law’s urging, not ordered a reopening and proper enquiry, the matter would have rested there. But even the court order, condemning the JSC’s dereliction of duty as it did, was not enough.

Over the years since then, and notwithstanding Freedom Under Law’s persistent efforts, nothing has actually changed. Somehow, whether by the ingenuity of his “Stalingrad” strategy, possibly also thanks to fecklessness and misplaced solidarity on the part of others, Judge Hlophe has been allowed to rule his roost for close on twelve years; this while all that was needed was to schedule a couple of hours to hear and test the veracity of Judge Hlophe’s explanation of his travelling from Cape Town to Braamfontein, only there to engage in unsolicited debates (one with a relative stranger) about a politically charged case that had nothing to do with him. 

In the circumstances the JSC can hardly expect the public to accept its pious assurances that the current matter will be dealt with appropriately. Its lamentable track record, not only in respect of Judge Hlophe but also in the equally notorious Motata case (where it irrationally overruled its own tribunal’s recommendation, letting Judge Motata off with a relative slap on the wrist) speaks for itself. Nor can it expect the public to be content with its proceedings (if any?) involving Judge Hlophe continuing behind closed doors. The judge’s conduct is a matter of grave – and entirely justified – public concern, his name a household word, seen more often in the media than in the Law Reports. 

The public is also concerned about the conduct of the JSC. It has to rebuild public confidence from scratch. This is no time for dignified aloofness. Prompt and transparent action is needed to dissipate the toxic atmosphere on the Western Cape Bench. Manifestly the starting point – and hopefully the solution – is the urgent removal of the Judge President, preferably by concerted peer pressure but, if necessary, by use of the constitutional and statutory suspension and removal mechanism available. 

The time for pious legalistic platitudes has passed – if ever there was one. The problem created by Judge Hlophe has to be confronted once and for all.
Every day of inaction that passes further erodes public faith and optimism.

Johann Kriegler, a former justice of the Constitutional Court, chairs the civil society organisation Freedom Under Law