Hlophe’s presence would be a travesty

Should Western Cape judge president John Hlophe participate in the Judicial Service Commission’s (JSC’s) interviews of potential judges for appointment to the Western Cape High Court on Friday it will be a travesty of justice, but in a sense an entirely fitting end to the JSC’s two weeks of interviews for judicial appointments.

The JSC, tasked with the appointment and disciplining of judges, including their removal, is required both to uphold the independence of the judiciary and ensure accountability of judges. Ultimately, it is in the business of overseeing justice. Yet, as any number of prominent legal commentators have already pointed out, it has been hard to spot justice in these two-week proceedings. Unless, far from that glittering, noble star we imagined it to be, justice is in fact a worn, grubby thing.

If Hlophe does take a seat on Friday, he does so having earlier this month been found guilty by a Judicial Conduct Tribunal of gross misconduct. The tribunal found Hlophe guilty of improperly seeking to interfere with and influence the adjudicative functions of SA’s highest court.

That is because elementary principles of judicial ethics preclude a judge of one division from discussing the merits of a matter with judges of the highest court when judgment is still pending. The principle, says the tribunal, “is so trite and would ordinarily brook no debate”. Yet the tribunal spent much time canvassing this principle “because of the force with which a senior and respected judge like Judge President Hlophe articulated it”.

It goes on: “Aspirant and newly appointed judges might take to heart his forceful assertions on this issue as correct. They are not. For their sake, it is important to restate the principle with clarity and unambiguity.”

But it wasn’t just that this elementary principle was breached. Among the representations made by the judge president to the two judges of the Constitutional Court were that he had a mandate; that he was close to people in intelligence; that once Jacob Zuma became president of the country people would lose their jobs; that he advised certain ministers; that the Supreme Court of Appeal had got it wrong in its judgment; and that there was no case against Zuma. He also told Justice Chris Jafta: “You are our last hope.”

Of those factors, the tribunal said: “This inference is irresistible and points to an attempt to influence.”

The tribunal’s verdict means there isn’t now just a charge faced by Hlophe: it is a final, factual and legal finding of an independent tribunal appointed by the JSC itself.

Correspondence from the JSC to Freedom Under Law in 2016, in response to its concern at Hlophe’s participation in JSC proceedings then, elicited this reply: “The absence of a suspension from office or a guilty verdict by the tribunal, in our view, indicates that there is no bar preventing Judge President Hlophe from carrying out his responsibilities as the Judge President of the Western Cape Division of the High Court.”

That, of course, is not now the case: there is a guilty verdict by the tribunal. And yet the JSC insists, in contravention of its own expressly stated views of 2016, that Hlophe can participate in Friday’s proceedings.

Furthermore, in a letter to the Cape Bar Council on Tuesday, the JSC explained that “it is impossible to predict how long the current process being undertaken by the JSC [regarding finalisation of the Hlophe matter] may take”, holding out the prospect that the 13 years already taken to arrive at this point may be yet further prolonged.

It is hard to see why the JSC would risk tainting the legitimacy of Friday’s proceedings when it could simply have Hlophe sit them out. It is more incredible still when you consider that a political party requires its members to step aside when criminally charged. Yet the JSC would demand no similar action of judges who, far from being merely charged, have in fact been found guilty of gross judicial misconduct by a legally constituted tribunal.

● Fritz, a public interest lawyer, is CEO of Freedom Under Law.