Senior advocates are said to have discussed organising the Bar to boycott the Supreme Court while Cape Judge President John Hlophe remains in office, as demands for Hlophe’s removal continue to mount in legal and academic circles.
The only precedent for such action was in 1956, when the Johannesburg Bar called for a boycott of then Judge President, LC Steyn, saying he was unfit for office because of his political affiliations to the Broederbond and National Party.
It has also emerged that senior advocate Peter Hazell, who called for Hlophe’s impeachment in August last year, has written a strongly worded letter to the Judicial Service Commission (JSC) demanding reasons for its decision not to act against Hlophe.
‘The JSC statement has left everyone in the dark. Under the Constitution I’m entitled to reason as to how they reached their decision,â€ Hazell told the Mail & Guardian.
This week, more than 70% of Cape Town’s senior advocates attended a meeting at which Hlophe’s fitness for office was questioned. The M&G understands that no one spoke in support of him at the meeting, which unanimously decided that the Bar council should stay united and ‘lead the way on any further developmentsâ€.
Earlier in the week eight top silks released a statement supporting former Constitutional Court judge Johann Kriegler’s assertion, in a letter to the Sunday Times, that Hlophe ‘is not a fit and proper person to be a judgeâ€ and his retention in office ‘constitutes a threat to the dignity and public acceptance of the integrity of the courtsâ€.
Endorsing this, the silks declared: ‘We find ourselves bound to support Justice Kriegler’s analysis and conclusions. In all the circumstances, we believe the right thing for Judge Hlophe to do is to resign as judge president and as a judge.â€
This sparked a counterblast by the chairperson of the Black Lawyers’ Association’s (BLA) judicial committee, Dumisa Ntsebeza, who attacked Kriegler for undermining the JSC in the legitimate performance of its duties.
The silks’ letter raises the question of whether Hlophe can continue to hear cases involving them. ‘This could lead to large-scale chaos at the high court,â€ said a judge, who asked to remain anonymous. ‘You can’t have a situation where the judge president has to recuse himself from every case in which one of the eight senior silks appear.â€
Commenting on the meeting attended by the top silks and on Kriegler, Ntsebeza said: ‘The advocates there expressed their views, but I can tell you now, that not everybody who was at that meeting agreed with what was said there.
‘The point I’m trying to make is that the JSC are the best people to make verdicts.
‘Kriegler first served in the apartheid order and was then given the opportunity to be a judge under a democratic order. He is now also a recipient of the Constitution which provides for the JSC to deal with issues,â€ said Ntsebeza.
‘These institutions ought to be treated with respect and should not be called into question about the manner in which they do things and their findings. It’s about respect for our institutions — we shouldn’t second-guess our institutions. I regard the members of the JSC as men of integrity,â€ he said.
The furore follows the JSC finding last week that there is insufficient evidence to justify an inquiry into Hlophe.
Central to the JSC’s deliberations was the complaint that Hlophe was a director of asset management company Oasis Holdings, which paid him almost R500Â 000. At the time he was on the company’s payroll he granted it permission to sue fellow high court judge Siraj Desai.
Hlophe claimed he had received verbal consent from former justice minister Dullah Omar for the payments, but could not back this up. Court documents shed serious doubt on his version.
This week, he also came under fire from the University of Cape Town’s law faculty, where he was an honorary professor until 2005.
In a letter, 14 academics asked if Hlophe ‘should consider whether his continuation in high judicial office in our legal system will not further damage our constitutional democracyâ€. The events surrounding him ‘strike at the heart of the attempts to build a constitutional democracyâ€, they said.
Under pressure from the DA and the African Christian Democratic Party Parliament’s justice committee announced on Wednesday that legislation embodying a code of conduct for judges would be discussed next month.
However, the M&G has learned that a draft ethical code for judges was drawn up in 2000 on the instructions of the president of the Constitutional Court.
The code was reviewed last year by a committee chaired by Judge Louis Harms of the Bloemfontein Supreme Court of Appeal and distributed by the JSC to judges across the country.
A senior judge of the Transvaal division said that, in terms of this code the JSC ‘should have thrown the book at Hlopheâ€.
The draft code of conduct stipulates that:
- without the justice minister’s consent judges may not accept, hold or perform any other office of profit;
- judges must recuse themselves from cases where there is a conflict of interest or reasonable suspicion of bias based on objective facts;
- judges should not accept any advantage or privilege that can reasonably be perceived as intended to influence them in their performance of judicial duties or to serve as a reward.
This week the M&G was told that Chief Justice Pius Langa and four other black judges and advocates constituted the small JSC majority which opted not to remove Hlophe from office.
Spokesperson for the JSC Marumo Moerane did not respond to emails or telephone messages. But Langa dismissed the report, saying it was ‘a matter of opinion and warrants no commentâ€.
The BLA’s Ntsebeza dismissed suggestions that the issue had become racialised, saying he was not attacking the substance of Kriegler’s letter, but the fact that it questioned the JSC.
‘The Constitution provides for the JSC to deal with such issues,â€ Ntsebeza said. ‘Such institutions ought to be treated with respect and not called into question over the manner in which they do things and their findings. It’s about respect for our institutions.â€
Chairperson of Advocates for Transformation Norman Arendse criticised the JSC’s finding. ‘I feel empty about this because we don’t know how they reached their decision,â€ Arendse said. ‘The process doesn’t allow for transparency; in accounting for their decision and the basis for it, you don’t know what procedure they followed.â€
Under existing legislation, only the National Assembly, which a two-thirds majority, can impeach a judge after a JSC recommendation. This has never happened in South Africa.
Since John Hlophe became judge president of Cape Town in April 2000, he has been at the centre of repeated controversies, writes Pearlie Joubert.
- In a 2004 case between Health Minister Manto Tshabalala-Msimang and the pharmaceutical industry, Hlophe was accused of ‘unreasonablyâ€ delaying his judgement on leave to appeal. When it was finally delivered, his ruling was overturned by the Supreme Court of Appeal and not reinstated by the Constitutional Court. Reacting to the ruling, Hlophe said: ‘I couldn’t care less.â€ A complaint about his conduct was laid with the Judicial Service Commisssion.
- In 2004 Hlophe wrote a report to Langa alleging racism at the Cape Bar. He also accused his deputy, Jeanette Traverso, of racism.
- In 2005 Hlophe said he gave an Afrikaans language rights case to Judge Wilfred Thring ‘because I knew he would fuck up the trial and then it could be set right on appealâ€. He repeated this in front of numerous witnesses, including advocate Norman Arendse, who wrote to Chief Justice Pius Langa about the incident. Denying he had made the remark, Hlophe claimed there was a smear campaign against him.
- Also in 2005, Hlophe called an advocate at the Cape Bar, Joshua Greeff, a ‘piece of white shit who is not fit to walk in the corridors of the High Courtâ€. He also suggested that Greeff should go back to Holland. Greeff is not Dutch.
- In June last year, the JSC was asked to investigate complaints that Hlophe’s son received a bursary from a large Cape Town firm of attorneys, Smith Tabata Buchanan Boyes (STBB). Derek Wille, former STBB senior partner and a university friend of Hlophe, said the payments had come from a bursary scheme ‘to help disadvantaged studentsâ€. Hlophe had appointed Wille to the bench as an acting judge on a number of occasions. Reported to the JSC for a possible conflict of interests, he claimed he did not know who was paying for his son’s education. The JSC accepted his word.
- In July last year Justice Minister Brigitte Mabandla put Hlophe on four months’ leave in the wake of the Oasis scandal.