Judge Hlophe cleared

JSC un­der fire af­ter shock de­ci­sion

Weekend Argus (Saturday Edition) - - FRONT PAGE - GAYE DAVIS and KARYN MAUGHAN

CAPE Judge Pres­i­dent John Hlophe has been cleared of gross mis­con­duct on grounds of in­suf­fi­cient ev­i­dence – just days be­fore he presents him­self for an in­ter­view to be­come a mem­ber of the high­est court in the land.

Op­po­si­tion par­ties last night re­acted with shock and dis­may, say­ing the mat­ter had ef­fec­tively been “swept un­der the car­pet” and raised ques­tions about the Ju­di­cial Ser­vice Com­mis­sion’s role as the de­fender of the ju­di­ciary’s in­tegrity and in­de­pen­dence.

Week­end Ar­gus has learnt that the de­ci­sion split the JSC’s com­plaints com­mit­tee nearly down the mid­dle – with six mem­bers back­ing the de­ci­sion, and four against.

In its 152-page rul­ing, the com­mit­tee found that while Judge Hlophe’s con­duct may have been “un­wise, ill-con­sid­ered, im­pru­dent, not thought through” this was not “in and of it­self … gross mis­con­duct”.

Judge Hlophe was ac­cused of try­ing to in­flu­ence the out­come of lit­i­ga­tion in­volv­ing Pres­i­dent Ja­cob Zuma.

The com­mit­tee ac­cepted he had dis­cussed the cases with Con­sti­tu­tional Court Jus­tice Bess Nk­abinde and Act­ing Jus­tice Chris Jafta, but pointed out that Judge Hlophe had claimed he did not know this was not an ac­cept­able prac­tice.

Week­end Ar­gus un­der­stands the mi­nor­ity of four mem­bers of the com­mit­tee in­sisted there were dis­putes of fact be­tween Judge Hlophe and his ac­cusers over his al­leged mis­con­duct – and that this could only be cleared up by a for­mal in­quiry.

Op­po­si­tion par­ties took the same view last night, ar­gu­ing that if there were no grounds for the Con­sti­tu­tional Court judges’ ini­tial com­plaint, a full in­quiry would have shown the pub­lic that this was in­deed the case.

In its rul­ing, the com­mit­tee said guide­lines for judges did not raise Judge Hlophe’s con­duct “squarely as be­ing un­eth­i­cal”. It noted that it might have been deemed so in terms of the Ju­di­cial Ser­vice Amend­ment Act, which has yet to come into force.

“We con­cluded that the ev­i­dence avail­able does not es­tab­lish or tend to es­tab­lish that any of the judges whose con­duct is im­pugned is guilty of gross mis­con­duct. We also con­cluded that it is highly un­likely that re­fer­ring the mat­ter to a full hear­ing would lead to a dif­fer­ent con­clu­sion.”

Judge Hlophe had claimed the Con­sti­tu­tional Court judges’ com­plaint against him was po­lit­i­cally mo­ti­vated. The com­mit­tee found th­ese claims were “as un­for­tu­nate as they are in­ca­pable of es­tab­lish­ment on the ba­sis of all the ev­i­dence be­fore us.

“They should not have been made without proof.

“It is clear (from Judge Hlophe’s ev­i­dence) that he based his al­le­ga­tions al­most en­tirely on con­clu­sions and in­fer­ences that he drew from what they had said and done on var­i­ous oc­ca­sions. (Chief Jus­tice Pius Langa and his deputy Dik­gang Moseneke) em­phat­i­cally deny the con­clu­sions and in­fer­ences. We ac­cept the de­nials.”

Judge Hlophe’s lawyer, Barn­abas Xulu, said the judge was study­ing the rul­ing.

“We are looking at the dam­age that has been done by th­ese very pow­er­ful peo­ple and (Judge Hlophe) is ap­ply­ing his mind to the rul­ing in his favour.

“We feel that this de­ci­sion will at least en­able him to again ex­er­cise his com­pe­tency as a judge… which, de­spite the cam­paign against him, no one has at­tempted to un­der­mine.”

Asked whether Judge Hlophe would pur­sue a dam­ages claim against the Con­sti­tu­tional Court, Xulu de­clined to com­ment. While Xulu said Judge Hlophe felt he’d been vin­di­cated by the rul­ing, op­po­si­tion par­ties were unan­i­mous – and vo­cif­er­ous – in their con­dem­na­tion.

DA leader He­len Zille said the de­ci­sion “flies in the face”of the JSC’s ear­lier com­mit­ment to thor­oughly in­ves­ti­gate “gravely se­ri­ous al­le­ga­tions” against Hlophe.

“This an­nounce­ment casts a dark cloud over South Africa’s en­tire ju­di­ciary. Without pro­ceed­ing to a full hear­ing, and de­spite ac­knowl­edg­ing that Judge Hlophe’s ac­tions had been ‘un­wise and im­pru­dent’, the JSC has now pro­nounced on Judge Hlophe… in the most du­bi­ous of cir­cum­stances.”

The Free­dom Front Plus ac­cused the JSC of bend­ing to po­lit­i­cal pres­sure, rather than pro­tect­ing the in­de­pen­dence of the ju­di­ciary.

“The JSC has cre­ated the im­pres­sion that it has bowed its knee to po­lit­i­cal pres­sure to hide the whole truth about Hlophe’s ac­tions,” Dr Corne Mul­der said.

“What next?” asked ID leader Pa­tri­cia de Lille. “The de­ci­sion not to pro­ceed (with a full in­quiry) means there will be a dark cloud hang­ing over (Hlophe’s) head for the rest of his ju­di­cial ca­reer.”

ACDP MP Steve Swart said the de­ci­sion gave sub­stance to for mer Con­sti­tu­tional Court judge Jo­hann Kriegler’s re­cent ob­ser­va­tion that the JSC “has be­come an im­ped­i­ment, rather than an aid, to ju­di­cial in­de­pen­dence”.

The JSC last night re­fused to re­veal how the com­mit­tee had voted, or to name those who made up the ma­jor­ity and the mi­nor­ity views.

Zille said the de­ci­sion came af­ter “a care­fully cal­cu­lated se­ries of events” in­volv­ing the ANC, its al­liance part­ners and like-minded groups.

“When (the ANC) can’t win, it changes the rules of the game.

“To­day’s de­ci­sion is one of the most de­struc­tive early con­se­quences of the Zuma ad­min­is­tra­tion’s at­ti­tude to­wards our ju­di­ciary.”

Speak­ing to Week­end Ar­gus yes­ter­day, Jus­tice Langa said the Con­sti­tu­tional Court’s jus­tices would study the JSC de­ci­sion be­fore re­spond­ing to it.

Judge John Hlophe

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