Hlophe com­plaint faces fresh hur­dle

Ten years af­ter the ini­tial com­plaint, a call for a judge’s re­cusal could stall the ju­di­cial con­duct tri­bunal be­fore it starts

Mail & Guardian - - News - Franny Rabkin

Western Cape Judge Pres­i­dent John Hlophe has asked for the re­cusal of one mem­ber of the panel in­ves­ti­gat­ing a gross mis­con­duct com­plaint against him.

In a let­ter to Bloem­fontein high court Judge Cag­ney Musi last week, Hlophe ac­cuses the judge, one of three peo­ple who must de­cide whether he is guilty of gross mis­con­duct, of hav­ing made dis­parag­ing com­ments about him and there­fore not hav­ing “an open mind” about the com­plaint against Hlophe.

Af­ter a decade-long de­lay, a ju­di­cial con­duct tri­bunal is to be­gin on Mon­day July 2. The re­cusal ap­pli­ca­tion could mean yet an­other de­lay to the fi­nal­i­sa­tion of a com­plaint that, when it was first made, stunned the ju­di­ciary and the coun­try.

In May 2008, the Ju­di­cial Ser­vice Com­mis­sion (JSC) re­ceived a mis­con­duct com­plaint un­like any it had re­ceived be­fore (or since): ev­ery jus­tice of the Con­sti­tu­tional Court com­plained that Hlophe had im­prop­erly sought to in­flu­ence the out­come of a judg­ment, then pend­ing be­fore the coun­try’s high­est court, re­lated to the pros­e­cu­tion of Ja­cob Zuma on cor­rup­tion charges. At the time, Zuma was pres­i­dent of the ANC and it was widely be­lieved that the out­come of the judg­ment would de­ter­mine whether he would also be­come pres­i­dent of the re­pub­lic.

The Hlophe com­plaint was the first se­ri­ous al­le­ga­tion of an at­tempt to in­ter­fere po­lit­i­cally in the ju­di­ciary. That the al­leged in­ter­fer­ence came from within its own ranks made it so much worse.

But the com­plaint is yet to be de­cided by the JSC, whose pro­cesses have been be­set by lit­i­ga­tion. It was put on hold sev­eral times, re­versed or set aside by the courts in dif­fer­ent court cases over the years.

Now there may be an­other de­lay: Hlophe has asked Musi to re­cuse him­self, say­ing Musi had made dis­parag­ing re­marks about him while chat­ting at a so­cial gath­er­ing in the pres­ence of other judges in KwaZu­luNatal in July 2017.

In a let­ter from his at­tor­ney, Barn­abas Xulu, Xulu refers to a dis­cus­sion about “the find­ings of the Supreme Court of Ap­peal”.

The let­ter does not iden­tify the judg­ment of the ap­peal court and Xulu could not be reached for com­ment. But in June 2017, an SCA judg­ment had crit­i­cised Hlophe for as­sign­ing a case to him­self in which Xulu was the at­tor­ney. The judg­ment was widely re­ported in the me­dia.

Xulu, in his let­ter dated June 22 2018, said to Musi: “You ut­tered words to the ef­fect that it was not sur­pris­ing that our client would act in the man­ner found in the judg­ment as this was con­sis­tent with his char­ac­ter. Th­ese words were in­tended to mean and were un­der­stood to mean that our client has a propen­sity to act in an un­eth­i­cal man­ner.”

Xulu said, when Hlophe heard about this re­mark, he called Musi to ask whether he had said this, but Musi had de­nied it and said he would not con­sider re­cus­ing him­self.

But “our client has es­tab­lished that you in­deed ut­tered dis­parag­ing re­marks … in the pres­ence of ap­prox­i­mately six mem­bers of the ju­di­ciary. Your de­nial to him of hav­ing made such dis­parag­ing re­marks is of some con­sid­er­able con­cern given your po­si­tion as a judge and a panel mem­ber of the ju­di­cial con­duct tri­bunal,” Xulu said.

Hlophe was “ap­pre­hen­sive” that Musi would not be able to bring a fair and un­bi­ased mind to the tri­bunal hear­ing.

The let­ter urged Musi to re­cuse him­self. If he re­fused to do so, an ap­pli­ca­tion would be made for him to do so at the tri­bunal, said Xulu, who also asked him to con­sider “the pos­si­ble de­lay to the com­mence­ment of the main pro­ceed­ings”.

He also asked Musi to con­sider what it would mean by “drag­ging mem­bers of the ju­di­ciary who were present when you made the al­leged ut­ter­ances … to give their ev­i­dence on oath in an ap­pli­ca­tion for your re­cusal”.

JSC sec­re­tary Sello Chiloane con­firmed that the let­ter had been re­ceived but said any is­sue of a re­cusal would be dealt with at the tri­bunal. Xulu could not be reached for com­ment.

Hlophe’s at­tor­neys are also de­mand­ing the pay­ment of out­stand­ing le­gal fees.

In an­other let­ter dated June 26 to the JSC and the Of­fice of the Chief Jus­tice, Xulu said the chief state law ad­viser said their claim had pre­scribed.

“It is now clear that our client’s rights are be­ing dis­re­garded and flatly ig­nored. Such be­hav­iour amounts to un­bri­dled despo­tism of one party over an­other,” said Xulu.

“Should we not re­ceive any feed­back in this re­gard, we will have no other op­tion but to halt any ad­di­tional ef­forts and costs to travel to the sup­posed hear­ing to con­vene on 2 July 2018”.

Chiloane said the depart­ment of jus­tice was “en­gag­ing” with Xulu’s team on the is­sue of fees.

Rod­ney Isaacs, the act­ing chief lit­i­ga­tion of­fi­cer with the depart­ment of jus­tice, told the Mail & Guardian that the fees that had been in dis­pute re­lated to ear­lier lit­i­ga­tion, be­fore the es­tab­lish­ment of the tri­bunal.

As far as th­ese cases were con­cerned, al­though the state at­tor­ney had ini­tially said the claim had pre­scribed, the of­fice of the chief lit­i­ga­tion of­fi­cer had now agreed with the state at­tor­ney that this mat­ter could be de­ter­mined by the tax­ing mas­ter of the rel­e­vant courts.

As far as the tri­bunal was con­cerned, all fees “have been paid up to date”.

“The old cases should not af­fect the tri­bunal,” said Isaacs.

Presage: The com­plaint against Judge John Hlophe was the first al­le­ga­tion of an at­tempt to in­flu­ence the ju­di­ciary from within. Photo: Oupa Nkosi

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