JUDGE HLOPHE SKIRTS CON­FLICT

Rights unit says judge pres­i­dent should have re­cused him­self from all West­ern Cape JSC in­ter­views

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West­ern Cape Judge Pres­i­dent John Hlophe’s pres­ence at the Ju­di­cial Ser­vice Com­mis­sion (JSC) in­ter­views in Midrand this week raised both eye­brows and con­ster­na­tion due to his long-run­ning le­gal bat­tles in­volv­ing the com­mis­sion and his con­nec­tion to one of the can­di­dates.

At­tor­ney Derek Wille, who was one of four can­di­dates rec­om­mended by the com­mis­sion for ap­point­ment to the West­ern Cape bench on Thurs­day night, was a part­ner at Smith Ta­bata Buchanan Boyes when it con­tro­ver­sially awarded a study bur­sary for dis­ad­van­taged stu­dents to Hlophe’s son, Thuthuka, in 2002.

A com­plaint re­gard­ing the bur­sary was lodged with the com­mis­sion in 2006. It was dis­missed on the grounds that Hlophe had no knowl­edge of the pay­ment.

On Thurs­day, at the be­gin­ning of Wille’s in­ter­view, Hlophe de­clared their re­la­tion­ship, con­firm­ing they had met in 1982 while study­ing law at the Pi­eter­mar­itzburg cam­pus of the then Univer­sity of Natal.

Hlophe said they had met one morn­ing af­ter he had been beaten by po­lice for “be­ing in a white area” – around the univer­sity li­brary where he was study­ing – with­out the proper pa­per­work.

Ac­cord­ing to Hlophe, Wille “took my dom­pas and he im­me­di­ately em­ployed me … This al­lowed me to stay in a white area. I was his gar­dener just to beat the sys­tem.”

Hlophe said this act, re­peated when­ever the dom­pas re­quired re­newal, al­lowed him to study at the li­brary.

“I sup­pose I owe him … With­out his help, I wouldn’t be here to­day,” said Hlophe, who went on to study at the Univer­sity of Ox­ford in the UK.

The is­sue of the bur­sary awarded to Hlophe’s son was raised by com­mis­sioner Fiona Ste­wart, West­ern Cape Pre­mier Helen Zille’s rep­re­sen­ta­tive on the com­mis­sion.

Wille said that, although he had been head of the firm’s bur­sary scheme, he “stood down” from the panel that had in­ter­viewed Thuthuka be­fore the bur­sary was awarded.

This ex­change later led to Hlophe re­cus­ing him­self when Wille’s can­di­dacy was dis­cussed dur­ing the com­mis­sion’s de­lib­er­a­tions – done be­hind closed doors – and when vot­ing for Wille was con­ducted.

How­ever, Chris Ox­toby, from the Univer­sity of Cape Town’s Demo­cratic Gov­er­nance and Rights Unit, said this was “prob­lem­atic” and that Hlophe should have re­cused him­self from all the West­ern Cape High Court in­ter­views.

“The judge pres­i­dent sat dur­ing the in­ter­views, put ques­tions to all the can­di­dates and, ac­cord­ing to the JSC’s ver­sion, would also have sat in de­lib­er­a­tions on the other can­di­dates be­fore the vote. There is clearly the po­ten­tial for him to in­flu­ence the process and, if the judge pres­i­dent felt the need to re­cuse him­self at all, this should surely have hap­pened be­fore the in­ter­views began, or at least be­fore the de­lib­er­a­tions on the other can­di­dates.”

Com­mis­sion spokesper­son Thoko Didiza said the JSC was of the opin­ion that there was no need for Hlophe to have re­cused him­self from all the in­ter­views for the West­ern Cape High Court.

Hlophe’s pres­ence did ap­pear to in­flu­ence some of the com­mis­sion­ers. Eco­nomic Free­dom Fight­ers leader Julius Malema thanked Wille at the end of his in­ter­view “for the role you played in the life of our JP [judge pres­i­dent]”. Malema added that, were it not for Wille’s ac­tion, “we would not have … such an ex­am­ple of black ex­cel­lence”.

Hlophe’s gen­eral pres­ence dur­ing the past week’s in­ter­views may also cause a fu­ture headache for the com­mis­sion. He is the sub­ject of a 2008 com­plaint lodged with the com­mis­sion by the full bench of the Con­sti­tu­tional Court re­gard­ing his al­leged at­tempt to in­flu­ence Judge Bess Nk­abinde and then act­ing Judge Chris Jafta in a case re­lated to fraud and cor­rup­tion charges against Pres­i­dent Ja­cob Zuma – then an or­di­nary cit­i­zen.

Hlophe had lodged a counter-com­plaint with the JSC, ar­gu­ing that the Con­sti­tu­tional Court judges had in­fringed on his rights by go­ing pub­lic with their com­plaint.

Nei­ther of the com­plaints have been fully in­ves­ti­gated by the com­mis­sion be­cause of a litany of court cases in the in­ter­ven­ing years. These in­cluded an ap­pli­ca­tion brought by Nk­abinde and Jafta con­test­ing the le­gal­ity of a tri­bunal set up by the com­mis­sion to in­ves­ti­gate the com­plaints. Last year, the Con­sti­tu­tional Court dis­missed an ap­pli­ca­tion by Nk­abinde and Jafta – who still sit on the coun­try’s apex court – to ap­peal a Supreme Court of Ap­peal judg­ment that found that the com­mis­sion’s tri­bunal was law­ful and should pro­ceed with its work.

JSC spokesper­son Carel Fourie said the judges pres­i­dent of all the di­vi­sions in the coun­try had nom­i­nated Hlophe to rep­re­sent them on the com­mis­sion “as al­lowed for by the Con­sti­tu­tion”.

Ox­toby, how­ever, ques­tioned the “ap­pro­pri­ate­ness” of the nom­i­na­tion to the com­mis­sion “since the same JSC is still seized with the com­plaint that the judge pres­i­dent sought to in­flu­ence judges of the Con­sti­tu­tional Court back in 2008”.

Tolsi pro­vides con­tent on the Ju­di­cial Ser­vice Com­mis­sion

for the Judges Mat­ter civil so­ci­ety coali­tion. The Demo­cratic Gov­er­nance and Rights Unit is a tech­ni­cal

ad­viser to Judges Mat­ter

Should Judge Hlophe even have a po­si­tion on the JSC?

SMS us on 35697 us­ing the key­word JSC and tell us what you think. Please in­clude your name and prov­ince. SMSes cost R1.50

PHOTO: BONGIWE GUMEDE

IN DE­FENCE West­ern Cape Judge Pres­i­dent John Hlophe

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