Whatever the ultimate determination of the John Hlophe complaint, it will represent a failure for the judicial system.
A few weeks ago, the Constitutional Court confirmed that there could be no further appeal against the two judgments of the Supreme Court of Appeal, which had set aside the decision of the Judicial Service Commission (JSC) to terminate the complaint against Western Cape Judge President John Hlophe.
The complaint, lodged about four years ago by members of the Constitutional Court, concerned an alleged attempt by Hlophe to influence judges of the court who were deciding a case involving President Jacob Zuma.
This newspaper suggested in an editorial that the manner in which the JSC dealt with the complaint would constitute a real test of its capacity to deal with key questions relating to the judiciary.
The public may be forgiven for now being truly confused. At its meeting last week, the JSC resolved that the complaint should be dealt with afresh under provisions of legislation governing the JSC that were neither in force when the alleged conduct took place nor when the initial hearings of the commission were conducted.
The resolution of the JSC now means that, in terms of this legislation, the chief justice must decide whether the complaint, if valid, is likely to lead to a finding by the commission of gross misconduct. If so, he must refer the complaint to a newly constituted body, the judicial conduct committee. This committee consists of the chief justice, the deputy chief justice and four other judges, two of whom must be women.
The committee will then decide whether the complaint prima facie indicates gross misconduct. If it decides in the affirmative and that the misconduct could lead to impeachment, the complaint must be investigated by the Judicial Conduct Tribunal, which is composed of two judges and a third person who is not a judge.
If, however, the committee considers the complaint to be serious but not impeachable, the committee will decide, after an inquisitorial process, whether punishment in the form of a warning, a reprimand, counselling or training would be appropriate.
If the application of this obstacle course (which, in fairness, is designed to ensure that only valid complaints against judges are investigated as opposed to vexatious complaints lodged by those who were on the losing side in court) has not confused you yet, then let us look at what the Supreme Court of Appeal said in its judgment in favour of Freedom under Law and against the JSC’s conduct in the Hlophe case.
Judge Piet Streicher, on behalf of a unanimous court, said “any attempt by an outsider to improperly influence a pending judgment of a court constitutes a threat to the independence, dignity and effectiveness of that court — The JSC had — already decided that, if Hlophe had indeed attempted to do so, he would have made himself guilty of gross misconduct, which prima facie may justify his removal from office.”
Streicher then concluded: “It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because the investigation will be expensive, or because the matter has continued for a long time.”
It is important to emphasise that Streicher made no finding about the complaint and thus about whether Hlophe had done anything wrong. His simple point was that a most serious allegation had been made and that it was in the interests of justice that it be fairly determined.
Now let us return to the new procedure to be adopted by the JSC. It is perfectly understandable that the commission, having lost two court cases dealing with this dispute, would want to play this one as carefully as possible. Yet the public is entitled to be bewildered. It is told that the chief justice must make an initial determination but, given his earlier role as mediator in this drama, he may need to recuse himself—as will his deputy, Justice Dikgang Moseneke, who is one of the complainants.
So who will decide whether the Constitutional Court complaint should be referred to the committee? And who replaces these two senior judges on that committee? Even more importantly, given the Streicher judgment, on what legal basis could it be decided that the matter should not be investigated by the tribunal, which in turn would need to make a recommendation to the JSC?
One can only hope that the JSC has considered all these problems and that solutions have been found to ensure that a saga now running into its fifth year can be brought to a final and fair resolution. That is the least that can be demanded by a public that looks to the JSC to ensure the integrity of the judiciary, including the justices of the Constitutional Court (some still sitting on the court’s Bench) who brought so serious a complaint against a senior judge, and by Hlophe, who has had to run his court with the intolerable pressure of this complaint bearing down on him.
Unless the initial steps are taken in the next few weeks, which is not unreasonable given the saga’s length and the import of the appeal court judgments, this matter will, sadly, drag on for a long time—to the detriment of the legal system. And that, whatever the ultimate determination of the complaint, will represent a failure for the system.