Johann Kriegler: This is Where Hlophe Erred in Bongo’s Acquittal

14 May 2021

Earlier this year, Freedom Under Law (FUL) took the unusual step of publicly criticising Judge John Hlophe’s dismissal of the charge of corruption against former minister Bongani Bongo. FUL described the judge’s conduct as yet another act of gross misconduct making him unfit him for judicial office and undertook to back up its comments with an analysis. This we proceed to do.

The case:

It was a straightforward case, well within the competence of any junior judicial officer. Applications in terms of section 174 of the Criminal Procedure Act and its predecessors have been a daily feature of our criminal courts for many years.

The law is clear and simple: if at the close of the prosecution case there is no evidence on which a careful judge could convict, the accused is entitled to be discharged. If there is evidence that is so bad as to be virtually worthless, a discharge in terms of section 174 should be ordered, but generally the judge does not evaluate credibility at that stage.

While the test is simple, its application is not always that simple and requires judicious examination of the facts of the particular case. While Judge Hlophe articulated the basic principles accurately enough – indeed in unnecessary detail – his evaluation of the facts was gravely defective. Examination of the judgment demonstrates that he distorted what was clear and drew conclusions that are clearly distorted.

The issue:

It was a simple case. The prosecution evidence on virtually all the relevant facts was undisputed.

There was one central issue: what was said in a conversation on 10 October 2017 in the office of Nthuthuzelo John Vanara, between him and Bongani Bongo. At the time Vanara was the evidence leader for a parliamentary committee inquiring into the affairs of Eskom and Bongo was a member of the National Assembly. The prosecution case was that Bongo asked Vanara to fake illness to obstruct the inquiry, in consideration for which Vanara could name his price which “the Eskom people” would pay and Bongo would deliver.

In his plea, Bongo agreed that the two of them met as alleged, but claimed that they met as fellow lawyers to discuss a question of law. At the time, the two of them were alone in Vanara’s office and so the case against Bongo would have turned on deciding which of them was telling the truth. By cutting short the case in terms of section 174, however, Judge Hlophe avoided having to conduct such an exercise. In effect, he found, though never actually saying so, that Vanara’s evidence was so bad as to be worthless and that he did not have to consider Bongo’s version.

The evidence:

The sequence of events starts on Wednesday 4 October 2017 when Vanara scheduled a meeting in Johannesburg for the following day with Zethembe Khoza, acting chair of Eskom.

Curiously, he then received three phone calls, one late in the evening, from Bongo, who was eager to meet him. Vanara’s testimony that the calls were related to his meeting with Khoza was challenged in cross-examination, but not controverted by any other testimony.

On the contrary, Vanara’s colleague who was with him during the evening call, testified that Vanara had told him at the time that it was Bongo who had called and that the call was about the Eskom enquiry.

These repeated and urgent calls (confirmed by police evidence) are consistent with Vanara’s evidence of the later offer of a bribe on Khoza’s behalf. On Bongo’s version, they are very odd indeed. If the judge gave any thought to this circumstance, he failed to record it in his judgment.

On Monday 9 October 2017 Bongo phoned again and they finally met the next morning. In his evidence, Vanara gave a detailed report of the disputed conversation. The key elements were these:

He was asked to assist the Eskom “people”;

Puzzled, he asked how he could assist;

Whereupon he was told: by shamming illness;

Thus delaying the conduct of the enquiry;

He was then asked to indicate how he would help to stop the enquiry;

And to name his price;

Which the Eskom “people” would pay to Mr Bongo; and

And which Mr Bongo would then pay over to Mr Vanara

Vanara testified that he turned down the offer firmly and asked Bongo to leave. (On any fair reading that evidence is clear but, as will be shown later, the judge somehow contrived to find fault with it on various spurious grounds). Vanara then WhatsApped one of his superiors to report the corrupt offer and that same afternoon went to Stellenbosch to make his report in person during a break in a workshop that they were attending.

Three of Vanara’s superiors confirmed in evidence that Vanara reported the offer of a bribe by Bongo to them that same day. Vanara’s formal written report of the incident was submitted about a fortnight later, Bongo having in the interim been appointed Minister of State Security. Some time in November that year the matter was reported to the police and the case eventually made its way to the Western Cape High Court, where Judge President Hlophe allocated it to himself.

The probabilities:

Vanara’s evidence was supported in material respects by the testimony of his colleagues and the overwhelming probabilities.

The first thing an objective adjudicator would ask is: What are the probabilities? Which of the two conflicting versions is more likely? Is it likely that Vanara would falsely impugn the honour of an important public figure? Why would he risk his own reputation and career by inventing a false tale and sending it up the line of authority in the parliamentary secretariat? Why would his colleagues bear him out? What could his compelling motive be?

There is no history of personal animosity between Bongo and Vanara.

A motive advanced at one stage by Bongo blew up in his face. Believing that Vanara’s complaint had first been raised on the day his statement was lodged (26 October 2017), Bongo suggested that the Vanara version was invented only once he (Bongo) had become a Cabinet minister on 17 October 2017. When it transpired that Vanara had relayed his version to his colleagues at the very earliest opportunity, on the day of the meeting (10 October), this line of attack was doomed.

We suggest that no competent judicial officer bringing an unbiased mind to bear on the undisputed facts could possibly say there is no case for Bongo to meet.

There is no hint in the judgment that Judge Hlophe, a Cambridge graduate, the senior High Court judge in the country with close on 30 years on the Bench, is incompetent. He could not possibly have overlooked the major probabilities in the case and on that basis alone his decision to discharge Bongo at the close of the prosecution case was demonstrably a travesty.

Other manifestations of bias:

Judge Hlophe’s perverted handling of the supporting evidence of the three colleagues to whom Vanara made the contemporaneous report is the second glaring feature of the case. Self-evidently this evidence is highly significant.

Any third-year law student should know that contemporaneous evidence of a report of the commission of a crime, known to lawyers as “raising the hue and cry”, is always important and often conclusive where one is dealing with a single-witness case.

While it is not direct proof of the commission of the offence, it is an important pointer to the truth.

The obvious question that the judge should have asked was: What must have happened to cause Vanara to WhatsApp his colleague and then rush to Stellenbosch to report a bribe? Why would he do this if he and Bongo had merely discussed a law point?

Nowhere in his judgment, however, does Judge Hlophe give any indication that he is aware of the importance of the very fact that Vanara raised the hue and cry; nowhere does he acknowledge that that it in itself constitutes weighty support for Vanara’s evidence.

On the contrary, he finds (in paragraph 52) that “the evidence of other state witnesses clearly does not corroborate that of Mr Vanara in material respects” and (in paragraph 42) “Mr Vanara’s testimony is contradicted by the testimony of the other witnesses and places his credibility as a single witness in question”.

This is simply not true.

The judge arrived at this perverse conclusion by ignoring the central fact that a report of a bribe was made, that it was made there and then, in considerable detail, to Vanara’s superiors, and as a matter of urgency.

Instead the judge nit-picked to find inconsistencies in the witnesses’ respective recollections of an oral communication more than three years earlier. There is no actual contradiction between the substance of Vanara’s evidence as to what happened between him and Bongo and what his colleagues remembered was reported to them.

But this is not the most egregious perversion of justice evident from Judge Hlophe’s handling of this important case. That distinction, we believe, should be accorded the use to which the judge put the hue and cry evidence. By a feat of logical gymnastics he turns it on its head.

Echoing a manifestly spurious line of reasoning advanced by Bongo’s counsel, Judge Hlophe rules that this evidence supporting the truth of Vanara’s evidence actually contradicts it. This he manages to do by arguing (incorrectly as it happens, but that is irrelevant) that Vanara committed an offence by not reporting the corrupt offer to the SAPS/Hawks. Vanara, and incidentally his colleagues, testified that they did not know that they were obliged to report the matter to the police.

Instead they escalated the matter within the parliamentary system.

Ignoring the evidence that Vanara and his colleagues did not know they were obliged to report the matter to the police, the judge reasoned that it leads him to doubt that a bribe could have been offered.

This is what the judge said (see paragraphs 26 and 27): 

“He did not report the commission of corruption to SAPS as required in terms of section 34(1) of the Act. His conduct is not consistent with that of a lawyer with knowledge of criminal law. The conclusion is inescapable: if Mr Vanara believed that Mr Bongo is guilty of an offence of corruption in terms of the Act, he (Mr Vanara) would have reported same to the Hawks/SAPS as required by section 34(1) of the Act. Why would he, Mr Vanara, choose to commit an offence under section 34(2) of the Act by not reporting the crime to Hawks/SAPS. Thus, his failure to report the incident of 10 October 2017 to the Hawks/SAPS simply does not make sense.”

The reasoning is so manifestly fallacious that it is difficult to engage with it. Suffice it to say, the judge should have stopped counsel in his tracks and pointed out the obvious illogic. That he entertained and adopted it manifests a settled determination to support a contrived conclusion.

Though these features conclusively demonstrate that Judge Hlophe’s judgment was designed to lend an air of legitimacy to the wrongful dismissal of an important case involving corruption in high places, there are further defects in the judgment.

Though Bongo had not given evidence, the judge quite improperly took into account what he had said in an affidavit submitted to the parliamentary ethics committee – and actually notes its consistency with the plea. That was not evidence before the court and could not lawfully be referred to in this manner. Judge Hlophe must have known that this was improper.

Conversely, the judge (in paragraph 45) engaged in speculation about what Bongo had said to the investigating officer, observing that, “It is not without significance, in my view, that Lieutenant-Colonel Mokhoema did not investigate the accused [sic] defence” and concluding that it “is inescapable that the investigating officer did not believe that Mr Bongo had committed any crime”. It is inconceivable that a senior judge can contend that what he assumes to have been the investigating officer’s belief is relevant (“not without significance”) in deciding a section 174 application.

The fact that, following Vanara’s confidential arrangement to meet Khoza in Johannesburg on Thursday 5 October, Bongo phoned Mr Vanara repeatedly, even late in the evening, seeking to arrange a meeting about the Eskom enquiry is obviously important. It lends support to Vanara’s version that the following Tuesday Bongo made him the corrupt offer on behalf of “people” at Eskom. Bongo’s version, however, raises two salient questions: Was it a wild coincidence that his calls followed Vanara’s confidential arrangement to meet Khoza and, more importantly, what was so urgent about the law point he says he wanted to discuss that he even proposed meeting Vanara at Cape Town airport on his return? Judge Hlophe ignores these salient features. Instead, by a process of convoluted reasoning (in paragraph 25) he discovers “a huge anomaly”(amounting to a credibility finding against Vanara) in that he made a “decision to withhold” the information of the corrupt offer from the colleague who had been with him the previous week when Bongo phoned late at night. (At the same time, conversely, as we have seen, the judge drew no inference from the fact that Vanara did indeed immediately report the corrupt offer to three other colleagues.)

Adopting an argument advanced by defence counsel, Judge Hlophe (in paragraphs 23 and 24) had a “difficulty with Mr Vanara’s evidence”, reasoning that because Vanara, who was merely the evidence leader, had no power to stop the inquiry, “it then becomes difficult to accept a senseless and futile act of bribing someone to act beyond the scope of their power, as the truth”. The proposition is palpably insupportable: the very purpose of the offer was for Vanara unlawfully to frustrate the enquiry by shamming illness, i.e. by unlawfully attaining an objective he was unable to attain lawfully. That defence counsel feels it necessary to advance spurious submissions is no warrant for a judge to afford them credence.

In similar vein, the judge himself introduced a note of incredulity in the course of Vanara’s testimony and gave his intervention stature in the judgment (in paragraph 24). Whereas Vanara had testified that the offer entailed the “people” at Eskom paying the bribe to Bongo for transmission to Vanara, the judge sceptically questioned the absence of banking details – for all the world as if the judge has not heard that bribes can be and often are paid in cash. He also appears to query the absence of a fixed amount, whereas it is perfectly clear on Vanara’s evidence that he was invited to name his price but rejected the approach out of hand, so any discussion of details did not arise. Far from being unlikely, the evidence has the ring of truth about it and it is the judge’s scepticism that is questionable.

The judge also comments adversely (still in paragraph 24) that there was no evidence of a follow-up regarding the payment, no “arrangements to get the money to Mr Vanara. Furthermore, there were no follow-up meetings between Mr Vanara and Mr Bongo”. This is manifestly nonsensical. On Vanara’s evidence, he turned down the offer and asked Bongo to leave. One can surely not reject his version on the basis that there was no follow-up. Of course there would be no follow-up. Conversely, one would like to ask Bongo why he never followed up on his alleged legal discussion with Vanara. The judge’s reasoning on the point is preposterous and evidences a settled determination to come to a preconceived conclusion.

The judge, having referred at length to the case law defining the test to be applied in a section 174 application, proceeded (in paragraph 52, unquestioningly following defence counsel’s argument) to apply a significantly different – and clearly wrong – test: “It is my judgment that “[sic] Mr Vanara’s evidence is not credible in some material respects. He is a single witness. Therefore his evidence must be clear and satisfactory in all material respects.” That is the test to be applied at the end of a case involving a single uncorroborated witness. It is astounding that a judge of Judge Hloph’’s experience can make so elementary a mistake. It also underscores the one-sided manner with which he approached the evidence.

The same paragraph contains another fundamental and revealing misdirection by the judge. He says: “The evidence of other state witnesses clearly does not corroborate that of Mr Vanara in some material respects.” This is a fundamental misconception of the law. The absence of corroboration in some material respects is irrelevant. What one looks for is the presence of corroboration in some material respects – and on the judge’s own finding there is some corroboration. In any event, that test too is applied at the end of a case, not in a section 174 situation, where the threshold is very much lower. Clearly, on his own evaluation of the evidence, Judge Hlophe should never have discharged Bongo.

Another manifestation of Judge Hlophe’s fixed intention to find fault with Mr Vanara’s version relates to the question of whether Vanara knew that Bongo was an advocate. This could possibly be marginally relevant to Bongo’s defence that he and Vanara met as lawyers to discuss a legal issue, but on the substance of the case it was a trivial side-issue. Vanara said he did not know Bongo was an advocate, while some of his colleagues testified that they knew, although the Acting Secretary to Parliament, one of the people to whom Vanara had reported the crime on 10 October 2017, did not. Contrasting Vanara’s evidence that he was unaware of Bongo’s title with evidence that it was common knowledge in the corridors of Parliament, the judge (in paragraph 40) finds that “This flies in the face of Mr Vanara’s testimony”. This inappropriate hyperbole says more about the judge’s mindset than it does about the evidence.

Likewise the judge’s sideswipe at the leader of the opposition and original complainant in the case reveals more about the judge than about the merits of the case. Pointing out (in paragraph 46) that “According to the investigating officer Mr Steenhuisen said ‘Vanara said he was bribed'” and labelling this “factually incorrect”, the judge accepts a submission by Bongo’s counsel “that such incorrect information could only have come from Mr Vanara. This is yet another version of what allegedly transpired between Mr Vanara and Mr Bongo on 10 October 2017.” That is an astounding proposition. There is nothing to suggest any link between Vanara and Steenhuisen in respect of information that had long since been in the public domain. It is inconceivable that a judge can put forward so unwarranted an argument to bolster an attempt to discredit Vanara (and en passant Mr Steenhuisen). The suggestion of a political motive is irresponsible.

Finally, and conclusively in a section 174 case, the judge says (in paragraph 49) that he has already found that there is insufficient evidence to put Bongo on his defence, but this is wrong. Nowhere in the judgment does the judge conduct an overview of the evidence as a whole; nowhere does he identify – let alone evaluate – the respects in which he finds Vanara’s evidence to be contradicted. Notably, he does not examine the material respects in which Vanara’s evidence is corroborated. Had Judge Hlophe engaged with these essential aspects of an assessment under section 174, the fallacy of his reasoning would have been plain.

Professional considerations:

The very fact that Judge Hlophe presided was questionable. He does not ordinarily preside in criminal trials: this appears to be the first major criminal trial he has taken for himself in several years.

He is facing charges of gross misconduct which, if the Judicial Service Commission so decides, will come before the National Assembly for impeachment. For that reason alone he ought to have considered it unwise, if not wrong, for him to preside in a case involving a member of that chamber.

In any event, it brings the administration of justice into disrepute when a judge with serious charges hanging over his head presides in any high-profile case.

It was a significant and exemplary case, the first corruption prosecution of a senior member of the governing party.

It was vital that it be conducted with manifest objectivity and fairness.

Judge Hlophe is a competent and experienced judge from whom judgments of the highest quality can be expected. It is therefore a matter for comment and concern that in this case he manifestly failed.

Judge Johann Kriegler is Chairperson of the Board of Freedom Under Law.

This piece was first published in News 24 on 8 March 2021, available here.

FUL Sends Letter to JSC

21 April 2021

In a letter to the (JSC), Freedom Under Law (FUL) calls for action based on the findings of the Judicial Conduct Tribunal (JCT) that Judge Hlophe is guilty of gross misconduct as envisaged in S177 of the Constitution.

FUL requests, inter alia, notification of the JSC’s intention to take a decision on the recommendation to suspend Judge President Hlophe.

The letter can be downloaded here:

FUL Launches Urgent Application in the Con Court Following Breach of Rule of Law

25 November 2020

MEDIA STATEMENT BY FREEDOM UNDER LAW

Freedom Under Law has instructed its lawyers to prepare an urgent application in the Constitutional Court following a grave breach of the Rule of Law. These are the facts:

For several years the public at large, more specifically in the Western Cape, has been following with mounting alarm reports of disciplinary proceedings against the Judge President of the Western Cape High Court, Judge John Hlophe. More recently these reports have included mention of another of the Western Cape judges, Judge Mushtaq Parker, who reported last year, including recording such complaint in an affidavit, that his Judge President had accosted him in his chambers and knocked him down. 

However, when the complaint later formed the basis of a charge of gross misconduct against Judge Hlophe, Judge Parker changed course and supported his Judge President’s denial of the assault. Predictably this about-face on oath resulted in a charge of gross misconduct against him.

The charges against both judges have been examined by a committee of the Judicial Service Commission, which has recommended they be referred to tribunals to decide on impeachment. 

More than a month ago President Ramaphosa, acting in terms of the Constitution and on the advice of the JSC, ordered that Judge Parker be suspended from doing any new work pending the outcome of the proceedings against him (which include another serious charge).  Meanwhile Judge Hlophe is also due to appear before another tribunal early next month on an unrelated long-standing charge. 

Early this week Freedom Under Law, which has been following Judge Hlophe’s conduct for years, became aware that he had apparently added yet another act of gross impropriety to his chequered track-record. Notwithstanding the order of the President suspending Judge Parker, Judge Hlophe had reportedly allocated him new judicial work.

Defying the President’s order issued in terms of the Constitution would in itself constitute gross misconduct warranting impeachment. It seems incredible that the senior Judge President in the country, acting in concert with one of his judges, was defying the order, and Freedom Under Law’s attorneys have asked the judges to confirm that they were not in fact acting as alleged. 

If they fail to do so by 17:00 on 25 November, urgent proceedings will be launched in the Constitutional Court to enforce compliance with the law and the Constitution.

FUL Welcomes JSC Decision to Recommend Suspension of Judges Makhubele and Parker

15 October 2020

MEDIA STATEMENT BY FREEDOM UNDER LAW

Freedom Under Law welcomes the decision of the Judicial Service Commission to recommend to the President that he suspend Judges Makhubele and Parker pending the conclusion of disciplinary proceedings against them.

This is in sharp contrast to what has happened in the case of Judge John Hlophe, who has been allowed to continue as Judge President of the Western Cape High Court for over twelve years with a most serious charge hanging over his head.

“By acting firmly, fairly and speedily in cases of alleged gross misconduct by judges, the JSC does what the Constitution demands: ensure the integrity of the judiciary. This enhances confidence in our judiciary and at the same time increases confidence in the JSC itself.

We accordingly look forward to a speedy and appropriate end to the proceedings against Judge Hlophe.”

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

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

True Judgment Needed In Hlophe vs Goliath

Judges deny complicity, but the complaint against John Hlophe poses grave questions about their own integrity

5 February 2020

Earlier this week the judges of the Western Cape High Court elected, through the office of the Chief Justice, to issue a fairly remarkable statement on the controversy generated by the complaint brought by Deputy President, Patricia Goliath against Judge President, John Hlophe.

There were the usual platitudes about how they welcomed the Judicial Service Commission’s statement that it would seek to resolve the matter as expeditiously as possible. But then there was this:

It has been suggested in the press that the judges of this Division have remained silent through cowardice or complicity. That is emphatically not so. Given the procedure for investigating complaints against judges, the proper place for judges with relevant knowledge to speak is before the JCC [Judicial Conduct Committee] and any Judicial Conduct Tribunal that may be established.

And then this:

We can assure the public that we have always adjudicated, and will always adjudicate, cases allocated to us fearlessly and with absolute impartiality.

Hmmm….

Is that all the judges of the division who chose to issue the statement? Permanent and acting judges? And these were the issues on which they chose to speak with one, united voice?

That seems fairly odd. Because, of course, among the most grave allegations made by Goliath is that cases were allocated to judges according to their perceived partiality. And not run-of-the-mill, custody dispute cases (though that would have been sufficiently concerning) but matters of the gravest consequence for every South African. Of the Earthlife Africa matter, requiring determination of the validity of South Africa’s various nuclear energy agreements, Goliath has said of Hlophe that he “attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed to the former President.”

Goliath also maintains that the appointment of acting judges, many of whom served for extended periods, was undertaken by Hlophe and his wife Judge Salie-Hlophe as if it were their personal largesse to be gifted their favoured persons.

For what it’s worth, it is interesting to note the curious snippet contained in the judgement delivered last week in the matter between the Department of Agriculture, Forestry and Fisheries and the law firm of B Xulu and Partners Incorporated. Barnabus Xulu, of course, is the personal lawyer of Hlophe. Last week’s judgment requires of Xulu that he repay over R20 million to the department but an earlier stage of the litigation, during which Xulu had been demanding payment of those monies had come before Goliath as judge. When she requested additional evidence from Xulu and that other potentially interested parties be notified, he complained to Hlophe. Golaith thereafter no longer presided in the matter.

That may be utterly coincidental. And Goliath’s allegations in respect of Hlophe may prove to be untrue. But it’s hard not to see how the judges of the Western Cape High Court don’t apprehend that the complaint and surrounding context pose the gravest questions for their integrity and impartiality. And short of definitive resolution of the complaint, no aggrieved public statement assuring the public of their impartiality could possibly be enough.

The judges also contend that their silence is not the product of cowardice or complicity. It’s certainly true that it would be inappropriate for judges to weigh in on matters of everyday social comment. To do so would be to risk the integrity of the judiciary and impair confidence in its fairness and impartiality. They speak principally through their judgments. But when the matters of the day go straight to the heart of their integrity and impartiality, as the allegations contained in the Goliath complaint necessarily do, they must speak.

And such statements must have weight. They can’t issue empty assurances and certainly not in this instance because they must know, as their statement also acknowledges, that until the complaint and surrounding allegations are definitively addressed their integrity hangs in the balance. 

Judges’ Silence Deafening in Lone Action Against Hlophe

23 January 2020

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

Hlophe Can’t Exercise Powers of a Judge Until Proper Investigation Completed, Says FUL

MEDIA STATEMENT BY FREEDOM UNDER LAW

26 January 2020

For over 12 years now Freedom Under Law (FUL) – an NGO established to protect and advance the rule of law across Southern Africa – has pressed for a decisive outcome in complaint after complaint relating to Mr Justice Hlophe, Judge President of the Western Cape.

The decade since has vindicated that assessment. The judge it described as ‘this highly talented man [who] carried the hopes of all who are passionate about transformation of the judiciary’, having been recruited at the age of 35 from the University of Transkei direct to the Cape Bench, has gone on to plunge the judiciary in more sordid scandal and public disrepute than any judge in its history.

It is nothing short of a disgrace that nearly 12 years on, the complaint laid by all Constitutional Court judges against Judge Hlophe for his attempt to interfere in their independent consideration of matters relating to then-President Zuma remains unresolved. FUL was obliged to institute legal proceedings against the JSC to compel it to do its duty. Its conduct was, embarrassingly, characterised by the Supreme Court of Appeal as nothing less than ‘irrational’. 

Now, with that complaint still not resolved, a fresh scandal has broken. It is hardly a year since the Supreme Court of Appeal found, in the most direct terms, in a case appealed to it, that he was guilty of bias. This not of a junior judge, but a judge entrusted to lead over 30 other judges.

In his valedictory address in the Constitutional Court late last year, retiring Justice Cameron singled out the Hlophe saga as a lingering cloud over legal life in South Africa. Yet it has continued – and this week it acquired a yet darker aspect.

This week the second most senior judge in the Western Cape lodged further complaints with the JSC, alleging attempts by Judge Hlophe to interfere in litigation. It also alleges physical assaults by Hlophe JP on other judges, as well as intimidation, victimisation and abuse. 

FUL supports Nadel’s call for the urgent suspension of Judge Hlophe. It is clearly right in principle: no judge should sit in judgment while himself facing serious allegations which go to his or her fitness to hold office, let alone lead a court.

Judge Hlophe’s response to this call by an important representative body of legal practitioners is very clear.

According to the official roll of the Western Cape High Court released for Monday he has made himself the presiding judge in its most public court: the motion court. There he will engage with legal practitioners and the ordinary, often unrepresented public.

This situation is intolerable.

 Meeting today, the FUL Board resolved unanimously that the time for platitudes and tired clichés is past. The current head of the Western Cape High Court is compromised. Until such time as a proper investigation is completed and all consequential processes – which may include impeachment – are completed,  Judge President Hlophe cannot be allowed to exercise the powers of a judge.