The JSC is lost in Hlophe’s labyrinth

Inexplicable that the commission has not recommended the suspension of the Western Cape judge president

A“good and faithful judge ever prefers the honourable to the expedient”. So said Roman poet Horace in 13BCE. But perhaps it is to ancient Greek mythology that we should turn to understand the saga of Western Cape judge president John Hlophe: specifically, the legend of Theseus and the Minotaur.

How does this odyssey begin? Among the first points of controversy was the disclosure in 2007 that Hlophe had received close to half a million rand in monthly payments from Oasis, an asset management company that later petitioned and was granted permission by him to sue one of his fellow judges for defamation. Initially, he denied these payments, later explaining them as reimbursement for costs incurred as chair of the trust run by the company, later still conceding they were a type of retainer.

As judges are not permitted to receive remuneration other than state payment, unless they have permission from the justice minister, Hlophe insisted he had received such permission from former minister Dullah Omar, then deceased. Rather remarkably, he averred that the permission had not been given in writing. Yet the Judicial Service Commission (JSC) by a narrow majority chose not to pursue a full investigation.

Six months later, in May 2008, all the then justices of the Constitutional Court filed a complaint with the JSC against Hlophe, alleging he had made improper approaches to two of them so that an appeal by then ANC leader and soon-to-be president Jacob Zuma might be resolved in Zuma’s favour. A year later the JSC determined that neither the justices’ complaint nor Hlophe’s countercomplaint that the justices had defamed him disclosed sufficient evidence of gross judicial misconduct so as to require a full inquiry.

Two different applications to review that decision, one by the then premier of the Western Cape and the other by Freedom Under Law (FUL), reached the Supreme Court of Appeal (SCA), where two different panels essentially declared the JSC decision invalid and set it aside.

It’s worth pausing here to consider that so shocking did the JSC’s refusal to treat seriously a complaint of such magnitude seem that former minister Kader Asmal sought to intervene as amicus in the FUL application, insisting that the JSC’s failure to uphold the independence of the judiciary seemed irreconcilable with the role envisaged for it by the founders of the constitution.

In September 2013 the judicial conduct tribunal finally began its hearing of the Hlophe matter. Multiple delays meant it was only concluded in December 2020. The tribunal must now report to the JSC for it to determine whether the misconduct is so grave as to warrant Hlophe’s impeachment.

Fifteen years after the initial complaint we have to expect that we’re still quite far off final resolution. In the interim, more was coming.

In 2017, in the matter of Mulaudzi v Old Mutual Life Assurance Company and Others, the SCA had this to say of Hlophe: “Here, the apprehension of bias is not limited to the fact of the relationship between Hlophe JP and the attorney [Barnabas Xulu, who is also Hlophe’s personal attorney]. The apprehension is strengthened by the following additional considerations: Hlophe JP was not one of the duty judges but allocated the matter to himself. He then proceeded to dismiss Old Mutual’s application for leave to intervene on the turn, in circumstances where he had not afforded himself sufficient time to read and properly consider the papers before coming into court. He thereafter proceeded to discharge the rule nisi granted in favour of the NDPP [national director of public prosecutions], also on the turn, in circumstances where he had not had the opportunity of first reading the replying affidavit, which was filed shortly before the hearing. When he subsequently gave reasons for his order, he did not refer to the material evidence in the NDPP’s replying affidavit, which pertinently contradicted Mr Mulaudzi’s defence.”

Then came the complaint from Hlophe’s deputy, judge Patricia Goliath. Among the charges she made was that Hlophe had physically assaulted a fellow judge in chambers, that he had abused his powers — as when he allocated matters to himself and other judges — and that he had treated her in a degrading and intimidatory manner. Hlophe levelled a countercomplaint but the chief justice, in his capacity as chair of the judicial conduct committee, has recommended that this complaint be dismissed while recommending that Goliath’s complaint proceed to a full inquiry.

Environmental affairs minister Barbara Creecy, meanwhile, is also aggrieved, wanting recission of an order granted by Hlophe in chambers. That order appoints the firm of his personal lawyer (Xulu) as one of two “implementing agents” in a R100m repatriation settlement.

All the while, there is concern that Hlophe may have suborned the judge whom he is alleged to have assaulted — Mushtak Parker — to change his story. Many of the judges in the Western Cape division have laid a complaint against Parker, insisting he lied in first maintaining the assault or thereafter when he later denied it: either way such dishonesty does not fit the requirements of judicial office. They also refused to adjudicate alongside him. That the division Hlophe heads is riven and unhappy is the least that might be said.

Which brings us to last Friday’s ruling by Hlophe in the matter involving former state security minister Bongani Bongo. It bears only asking how it is that Hlophe might have allocated this case to himself, a case concerning the erstwhile head of SA’s intelligence agencies, when the Constitutional Court complaint is not yet determined and among other things involves Hlophe allegedly claiming to one of the judges that he had links to national intelligence.

There, in fairly abbreviated form, is the labyrinth we now confront. Is there an Ariadne’s thread so that we might find some way out? We at FUL maintain and have long contended that it is inexplicable that the JSC has not recommended the suspension of Hlophe pending the resolution of the various complaints. It is constitutionally allocated such power. It has exercised that power in the complaint relating to Parker.

This suspension power is not a punitive power. It does not prejudge any complaint. It is to be deployed to allow for the retention of public confidence in the administration of justice until the complaint can be finally determined.

Understood in this light, it is incomprehensible that the JSC would use this power in respect of a judge far less senior than Hlophe and whose powers, and therefore potential to unsettle confidence, is far more attenuated, and yet not call for Hlophe’s suspension.

After all, should the inquiries ultimately vindicate Hlophe, then it will be he who is the conquering Theseus — the man who killed the Minotaur and made it out of the labyrinth.