HLOPHE CASE A TEST OF ANC’S WILL

It’s a big week for our judiciary. Interviews for the Constitutional Court and a finding of misconduct against Western Cape judge president John Hlophe by the Judicial Conduct Tribunal for trying to irregularly influence Constitutional Court justices in a case involving former president Jacob Zuma dominated headlines.

In itself, the finding by the tribunal has huge political ramifications. It is a moment of truth (one of many this year) for the ANC.

But the stakes are so high precisely because it comes at a time when the judiciary is under sustained attack by people who reject the foundation of our democracy, the constitution. In particular, Zuma and his allies — such as ANC secretarygeneral Ace Magashule and EFF leader Julius Malema — are working hard to discredit the judiciary, with the occasional assistance of people like Magashule’s deputy, Jessie Duarte.

The finding against Hlophe, of gross misconduct, is 13 years in the making. It is long overdue and it’s on point. And yet, it’s not the end but rather the beginning of any attempt to remove him from the bench. It will boil down to whether the ANC in parliament will pull together sufficiently to concede to his removal.

Of course, expectations that the ANC will do what’s right are understandably low. It is deeply factionalised and desperately in need of moral regeneration. In particular, its conduct in supporting Zuma and Magashule has caused many to wonder whether it still even believes in the constitution it helped craft. Evidently, many in the party simply don’t; we can only hope they’re outnumbered by those who do.

Yet the Hlophe case provides the ANC with a concrete opportunity to change direction and prove that, despite what Zuma says, the party is indeed committed to the constitutional project.

Supporting a bid to remove Hlophe would mark a decisive break from those hostile to the judiciary. Here, the EFF is a prime culprit: on the one hand, it lambasts judges for being in the pockets of politicians, even as Malema sits on the Judicial Service Commission that appoints judges.

You can see the obvious self-interest in this strategy from Magashule (who will answer 21 counts of fraud and corruption in August) and Zuma (who is facing numerous court dates). This week, Zuma was told to repay an estimated R16m in legal bills he’s racked up, and the court took him to task for his “reckless disregard for the truth” in his repeated attacks on judges.

If it wants to, the ANC can put a wedge between itself and these tainted individuals — it simply needs to do the right thing on Hlophe.

But does it want to? It was clear from the court ruling on Zuma’s legal fees this week that the ANC has bent over backwards to indulge the former president. At one point, the judges said that to have given Zuma “a blank cheque to pay private lawyers is egregious”.

This sort of indulgence of Zuma, a narcissistic kleptocrat, has been seen far too often in the party to be a coincidence.

Clearly, many still fear Zuma’s power. And much will depend on who prevails in the factional tussle: Zuma’s radical economic transformation (RET) group, which will back Hlophe, or those aligned to President Cyril Ramaphosa.

Right now, those opposed to the RET faction are more powerful — evident from the ANC caucus voting for an inquiry into public protector Busisiwe Mkhwebane’s fitness to hold office.

But it’s more than that. It’s a clash that will unmask those working against our constitution. Those who vote to remove Hlophe can demonstrate that they value an independent judiciary.

It would be a loud and decisive statement. But sadly, at this point it seems a long shot.