John Hlophe’s attack on chief justice over Islamophobic bias true to form
Western Cape judge president John Hlophe’s accusations of bias and Islamophobia against chief justice Mogoeng Mogoeng after Mogoeng had recommended that Hlophe face possible impeachment for alleged assault, abusive language and abuse of power may, at first glance, seem shocking.
But it shouldn’t. Hlophe has, for more than a decade, demonstrated a flair for avoiding accountability — by accusing his accusers of racism, shadowy agendas and antitransformation bias. Mogoeng is not the first judge or chief justice he has lashed out at, nor, given the way the Western Cape judicial chief responds to any form of questioning of his authority, is he likely to be the last.
Aware of the controversy that continues to swirl around Mogoeng over his reported comments that SA should soften its pro-Palestine stance in responding to the Middle East crisis, Hlophe has accused the chief justice of dismissing his gross misconduct complaint against his deputy Patricia Goliath because of bias against Muslims.
Hlophe converted to Islam in 2015 before marrying judge Gayaat Salie-Samuels.
“We remain extremely concerned that chief justice Mogoeng’s religious beliefs and commitments and statements that have roundly been regarded as insensitive to the Palestinian cause have given rise to an appearance of lack of impartiality on the part of our chief justice in relation to persons who have religious identities shared by the Palestinian Muslims,” Hlophe’s attorney, Barnabas Xulu, wrote to the Judicial Service Commission (JSC) this week.
The judge president, it seems, is out to draw blood. And not for the first time.
Accused in 2008 of attempting to sway two Constitutional Court justices to swing a pivotal ruling in favour of the then recently elected ANC president Jacob Zuma, Hlophe framed the complaint against him as driven by improper, and potentially racist, motives linked to his authorship of a 2004 “racism report ”— in which he accused multiple white judges and advocates of being racist.
Hlophe complained that he and other black judges had suffered “numerous” experiences of racism by white colleagues “deliberately trying to undermine the intellect and talent of black judges”.
The heads of court evaluated Hlophe’s racism report and found that his allegations “against individual judges and some of the members of the legal profession have, in general, been refuted by the persons concerned”.
But Hlophe stood by his accusations, which he said was the true reason that the Constitutional Court alleged that he had tried and failed to persuade judges Bess Nkabinde and Chris Jafta to rule that the search and seizure raids conducted on
Zuma and his lawyers — in which the Scorpions reportedly seized 93,000 pages of evidence — were not lawful.
“Before 2004 I was a darling of the legal profession,” Hlophe stated in his submission to the JSC. “I was a superstar. There were people in the legal profession, including some retired judges, who were saying openly that ‘John is a star, he is a future chief justice of this country’ ... Until 2004. Until the racism report.”
Hlophe also lashed out at then chief justice Pius Langa and his deputy, Dikgang Moseneke, who he said should themselves face impeachment for “orchestrating the complaint” against him. This move is now being copied in response to Mogoeng’s recommendation that he face an impeachment tribunal.
In a decision later overturned by the Supreme Court of Appeal, the JSC chose not to pursue a possible impeachment investigation of Hlophe, despite huge differences between his testimony and that supplied by Nkabinde and Jafta.
According to Jafta, Hlophe told him that the cases involving Zuma needed to be looked at “properly” because he believed Zuma was being persecuted just as he (Hlophe) had been persecuted. Jafta said Hlophe told him “sesithembele kinina”, meaning “we pin our hopes on you”.
After years of legal wrangling, and multiple court challenges, the Constitutional Court’s gross misconduct complaint against Hlophe is set to proceed in October.
If history is anything to go by, Hlophe will not go down without a fight and is likely to accuse anyone who implicates him in wrongdoing of doing so with nefarious motives.
Mogoeng, as the chair of the JSC, will almost certainly play a potentially important role in overseeing that long-awaited impeachment inquiry. Having dismissed Hlophe’s complaints of racism and gross incompetence against Goliath, Mogoeng has also bolstered the credibility of the Western Cape judge president’s main accuser in a second possible impeachment trial.
So is it shocking that Hlophe is now seeking to annihilate the character of the chief justice, in a public and politically loaded way? No. Not at all.