Hlophe accuses Bar of intimidation
The two members of the Cape Bar Council visited Hlophe to discuss his option of taking special leave while undergoing judicial proceedings that could result in his impeachment if he is found guilty.
The Judicial Service Commission (JSC), which still has to set up a tribunal to deal with the complaint of gross judicial misconduct that Constitutional Court judges brought against Hlophe, said it was not desirable for the judge president to take special leave or be suspended, claimed Hlophe's lawyer, Barnabas Xulu of Xulu Liversage Attorneys.
"This visit constitutes intimidation ... and it is interfering with the administration," said Xulu. "It also undermines the JSC's decision. This is part of a campaign by the members of the council to ignore the JSC's investigation process and to intimidate the judge president into resigning from his position."
A formal complaint has been sent to Mogoeng informing him that the visit to Hlophe by the council's chairperson, advocate Ismail Jamie SC, and advocate Jeremy Muller SC constituted what the judge president considered a serious threat to judicial independence and the proper administration of the Western Cape High Court. Hlophe claims he was presented with an "ultimatum" that he either step aside voluntarily or the council would call for his suspension, but Jamie denies this.
"This is entirely inaccurate as there was no ultimatum," said Jamie. "We conveyed the views of the council and did not threaten or suggest that we would call for his suspension. We conveyed our views of the appropriateness of him discharging his obligations as judge president while subject to impeachment processes. The rest of what happened was done in chambers and I would prefer not to disclose it."
Muller backed up Jamie's version of events, but Xulu said the visit was inappropriate and alleged it could be considered "criminal interference" with judicial independence, the duties of a judge and the proper administration of justices and the courts. Xulu claimed the advocates presented Hlophe with a copy of the regulations dealing with special leave for judges and urged him to consider taking advantage of them, or risk the council calling for his immediate suspension.
Xulu alleged the council had moved on from public criticism in its efforts to bring about the removal of the judge president and resorted to confrontation to force the judge president to resign.
If this conduct was permitted, he said, the safety of the position of judge president could not be assured because any member of the community, or an unhappy litigant, could walk into the court and ask him to resign or take special leave.
Xulu said the rules that restricted attorney criticism of the judiciary were not intended to protect judges from criticism, but preserve public faith and confidence in the fairness and impartiality of the judicial system. Hlophe asked the chief justice to investigate the visit because it was unprecedented.
Hlophe opted to take special leave in relation to this complaint when the JSC was dealing with the Constitutional Court justices' complaint in 2008. However, he returned to work in 2009 before the complaint against him had been determined and raised the ire of the general council of the Bar.
"It is untenable that, pending the investigation of the complaint, the judge president stays on active duty," the council said at the time. "The seriousness and source of the complaint, as well as its ramifications, demand that he goes on special leave."
For the judge president to stay in office pending the determination of the complaint would prejudice the administration of justice, as well as public confidence in the independence and impartiality of the judiciary, the council claimed.
Hlophe stayed on at work and the JSC eventually cleared him of misconduct. The long-running issue of how to deal with the matter has presented an ongoing and unprecedented headache for the JSC.
When the complaint was lodged, seven of the 11 sitting Constitutional Court justices complained that Hlophe had improperly tried to influence two of them to rule in favour of President Jacob Zuma in a case involving the country's multibillion-rand arms deal.
The JSC cleared Hlophe in 2009, but Western Cape Premier Helen Zille immediately challenged the decision in the Supreme Court of Appeal and, in a separate case, so did the non-governmental organisation Freedom Under Law. When the JSC lost both cases, it decided not to pursue litigation. Hlophe, on the other hand, challenged both judgments.
In March, the Constitutional Court declined to hear Hlophe's case because so many of its own judges were involved and the matter was referred to the judicial conduct committee. A breakthrough in how to deal with the prickly matter came in September when the JSC announced its recently convened judicial conduct committee had recommended it set up a tribunal.
Another challenge posed in Hlophe's submission to the judicial conduct committee is whether he should be held liable for gross judicial misconduct for "opinions, views and beliefs expressed in the course of a private in-chamber conversation with judges whom he considered to be his friends".
Hlophe's submission to the judicial conduct committee contends that the complaint turned essentially on what transpired during the course of two conversations, one between him and Justice Chris Jafta, and the other between him and Justice Bess Nkabinde.
A date for the new tribunal that could finally resolve the complaint of gross judicial misconduct against Hlophe has not yet been finalised, Sello Chiloane, secretariat of the commission, said this week.
Xulu said the justice department had not paid his legal fees, which was depriving Hlophe of his right to legal representation in the tribunal.
In August, Justice Minister Jeff Radebe said he would cover Hlophe's legal fees after Xulu informed the JSC deliberations that he was owed more than R2-million.
Hlophe claims that he is entitled, as a judge president, to have his fees paid.