Judge Hlophe cleared
JSC under fire after shock decision
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