A compromise plan aimed at ending the latest battle around Judge President John Hlophe has left questions hanging, and looks likely to lend momentum to calls for an improved disciplinary mechanism for judges.
Chief Justice Pius Langa is expected to release a report on transformation in the judiciary next week, and has suggested to the Judicial Service Commission (JSC) that it propose mechanisms for dealing with the kind of allegations that have split the Cape Division.
But, for now, hugely damaging claims of racism and apparent misconduct involving Judge Hlophe and leading advocates remain unresolved.
There will apparently be no action on an affidavit by senior counsel Dirk Uijs confirming reports that the judge had, during a meeting in his chambers, called attorney Joshua Greef ”a piece of white shit who should go back to Holland”.
Judge Hlophe denied the allegation in a meeting with Judge Langa and other senior judges, and Uijs said his affidavit should not be construed as an official complaint, which could trigger disciplinary moves by the JSC.
The apparent trade-off is that acting Judge Tandazwa Ndita will not pursue a complaint she lodged with the law society against Greef over his public criticism of her handling of the high-profile Sasha-Leigh Crook murder case.
The decision, Judge Langa said on Wednesday, was reached in the ”interests of the judiciary, the legal profession, and the administration of justice”. He explained: ”Although neither version of the issue is or has ever been withdrawn, neither party concerned wishes any action taken against the other.”
A number of legal figures argued this was an unsatisfactory resolution of an issue that suggested either that a senior advocate perjured himself or that the province’s top judge lied to his colleagues.
And a potentially more serious allegation by advocate Norman Arendse, chairperson of the General Council of the Bar, has not been resolved at all.
Arendse wrote to then chief justice Arthur Chaskalson earlier this year alleging Judge Hlophe told him he had assigned the sensitive Mikro school case to Judge Wilf Thring because he knew Judge Thring would ”fuck it up on trial and then it could be set right on appeal”.
The case dealt with whether the Afrikaans school could be forced to provide English-medium instruction for a small number of black pupils, and it appears Judge Hlophe believed it could be used to teach Judge Thring a lesson about transformation.
More generally, Judge Hlophe’s unprecedented attack on the Supreme Court of Appeal after it disagreed with him on medicine-pricing regulations has gone unremarked; manageable tensions over transformation have broken into open warfare; judges previously critical of him have circulated a petition in his support and careers seem to hang in the balance.
A senior Cape legal figure familiar with the negotiations leading to Judge Langa’s announcement described the decision not to take action as a ”cop-out”, excused by Uijs’s decision not to characterise his affidavit as a complaint. ”The plan was to fudge it, with a technical argument saying there was no complaint. Something could have been crafted [to effect discipline] by the JSC if necessary, but there is no will there.”
”Where does this leave integrity and accountability? Someone is lying, and nothing is done.”
The Democratic Alliance’s Sheila Camerer applauded Judge Langa’s ”hands-on” approach: ”I think he’s handled it the only way he could given that there wasn’t a formal complaint.”
One JSC member, who supports Judge Langa’s approach, said the chief justice had assured the commission he would remain closely involved, and that his report on racism and sexism on the Bench would propose mechanisms for dealing with such complaints.
Currently, there is a gulf between the disciplinary powers of the JSC, which cannot offer much more than a slap on the wrist, and the parliamentary impeachment process, which even Judge Hlophe’s stauncher adversaries feel may be too blunt an instrument for the circumstances.
That gap was supposed to be filled by legislation establishing disciplinary tribunals for judges and a more appropriate mix of grievance procedures. The process has stalled, largely over concerns within the judiciary about how to structure the tribunals while preserving the separation of powers.
”The disciplinary process we propose would have lay people included at key stages. This will instil more confidence and transparency,” said Fatima Chohan-Kota, who chairs Parliament’s justice committee.