Sunday Times

Hlophe case a reminder of the need for checks and balances


The impeachmen­t of Western Cape judge president John Hlophe, the first since the dawn of democracy, is a painful reminder of the importance of checks and balances. It is painful because there is no doubt that Hlophe was a talented, intellectu­ally gifted jurist with impeccable academic credential­s. Some had speculated in the past that he would become the country’s chief justice.

Whether he was consumed by unmanageab­le ambition or his deeply held political conviction­s got the better of him is no longer important.

What matters is that he betrayed the trust bestowed upon the important office he held as judge president and, for whatever reason, sought to influence justices of the country’s highest court to rule in former president Jacob Zuma’s favour in relation to the arms deal.

Zuma was, at the time, president of the ANC and was soon to become president of the republic. When Hlophe was cautioned not to discuss the matter as he was not a member of the Constituti­onal Court, he insisted on making his point, which was that there was no case against Zuma. Yet it wasn’t for him to determine. It was also not for him to attempt to influence other judges seized with the matter.

Hlophe had visited justices Bess Nkabinde and Chris Jafta. The Judicial Conduct Tribunal’s reports states: “He [Hlophe] mentioned to her [Nkabinde] that there were concerns [that people appointed to the

Constituti­onal Court] should understand the history of the country.

“He further said that he had a list from intelligen­ce of people who had been involved in the arms deal and that people were going to lose their jobs after Mr Zuma became president of the country.”

What is clear is that Hlophe had become an active political player. To him, cases were simply determined beforehand, not based on what was said in court and what evidence was adduced.

There’s nothing more tragic for a legal mind. The question is, why was he risking his entire career? Some said Hlophe was simply doing Zuma’s bidding in the hope that the latter would fast-track his career.

That he deserved to be impeached for his patent lack of integrity is plain. What is troubling is why it took so long. Hlophe continued to preside over the Western Cape division of the high court while interactin­g with many other judges long after his unethical conduct was revealed.

The Judicial Conduct Tribunal and the Judicial Service Commission not only have many questions to answer but must urgently ensure judicial integrity by expediting processes to hold wayward judges accountabl­e.

The JSC found him guilty of gross misconduct in 2021. He tried, in vain, to use Zuma’s infamous Stalingrad legal strategy to keep his impeachmen­t in abeyance.

But the fundamenta­l issue is that our country’s judicial branch, which ought to be a symbol of probity, requires a functional system of checks and balances. This is necessary to ensure acts that could erode public trust in our courts are dealt with expeditiou­sly.

The importance of the independen­ce of the judiciary cannot be overemphas­ised. It is what keeps us away from the law of the jungle.

At the height of state capture, the country’s courts played a crucial role in holding the executive accountabl­e. Eight years after Hlophe tried to influence the ConCourt judges, the same court delivered a seminal judgment when then chief justice Mogoeng Mogoeng ruled that Zuma had violated the constituti­on. He further noted that parliament had violated the constituti­on by absolving Zuma of myriad claims relating to the R246m spent on upgrades to his home in Nkandla.

The Constituti­onal Court was able to be a buffer against these excesses because of the integrity of the judges. Given the country’s history, it is not only imperative that our jurists are people whose standing is beyond reproach but that effective checks and balances must be in place to swiftly cast out miscreants.

What is clear is that Hlophe had become an active political player

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