Exit strategy for Hlophe?

The legal fraternity, led by black advocates, are seeking to find an exit strategy for Cape Judge President John Hlophe. They believe that Hlophe’s case is divisive and weak.

This week Hlophe applied to the Johannesburg High Court for an order declaring that his rights had been infringed by the judges of the Constitutional Court, which made public its complaints against him.

Observers said he had been bruised by this week’s appearance in that he admitted to many of the charges against him.

Lawyers also believe that the Constitutional Court complaints against him, lodged with the Judicial Services Commission and due to be heard once the High Court case is over, have merit.

A prominent black lawyer working closely with the team attempting to broker the settlement, said: “I am involved [in moves to devise an exit strategy] because we are dealing with an extraordinary matter.”

He said the moves were triggered by the fading prospect of Hlophe winning his battle with the Constitutional Court. Of particular concern was the possibility that Hlophe could become the first judge in South Africa to face impeachment.

In addition, the grilling of Hlophe by the Judicial Service Commission (JSC) could badly damage the image of an already battered judiciary.

However, Hlophe’s lawyer Lister Nuku denied on Thursday that a settlement proposal had been put to his client. Constitutional Court registrar Maatie Stander said she knew nothing of discussions about a settlement.

The Constitutional Court judges have accused Hlophe of trying improperly to influence the outcome of a case involving ANC president Jacob Zuma and referred the matter to the JSC.

The case has divided the judiciary, mainly on racial lines, and prompted mounting attacks on the Constitutional Court by Zuma’s supporters.

This week a full Bench of the Johannesburg High Court, comprising five judges, heard Hlophe’s application for an order declaring that the Constitutional Court judges’ handling of the complaint against him had infringed his rights. Once this hearing is through, the JSC hearing could start and is likely to drag on, further harming the dignity and reputation of the Bench.

In the light of this, a settlement is being sought with particular attention being paid to compensation.

One proposal is that Justice Minister Bridget Mabandla should grant Hlophe early retirement, while preserving his full retirement benefits. However, the legal profession, which is pressing strongly for an exit strategy, does not favour such a solution because it might have a political fallout and would involve heavy lobbying of politicians.

The favoured option from the legal world is that Hlophe should be given a guarantee of future earnings if he steps down. This would also minimise the damage to his reputation.

If he agreed to such a solution, the source said, the way would be paved for the JSC to drop its investigation of the complaint against him by the judges of the Constitutional Court. Hlophe would no longer be a judge, and so would not come under the oversight of the JSC.

“It would be inappropriate for the JSC to comment,” said JSC spokesperson Marumo Moerane.

However, the M&G understands that not all the judges of the Constitutional Court are willing to back down on their complaint, as they believe it reflects on their integrity.

They are understood to include acting JSC chairperson Craig Howie, who strongly believes that he has a constitutional obligation to investigate the complaint.

If he had his way, the source said, the dispute that they have been trying to resolve for about four weeks now would not even have made it to this week’s hearing.

This week’s Johannesburg High Court hearing, with Deputy Judge President Phineas Mojapelo presiding, finally got under way after it was postponed some weeks ago while awaiting the appointment of a full Bench.

Mojapelo’s appointment of four other judges to help him decide the matter—Dirk Marais, Antonie Geldenhuys, Rami Mathopo and Seun Moshidi—raised eyebrows.

Legal academic Pierre De Vos said a full Bench of the high court normally consisted of three judges.
Wits University law professor David Unterhalter said Mojapelo might have thought there is “safety in numbers” in ruling on such a sensitive matter.

De Vos agreed: “I would imagine there is a strong consideration that when the decision is made they want it to have legitimacy and that it is not possible for people to attack the judgement as biased or because the judges are ‘counter-revolutionaries’.”

The expanded court took Hlophe’s counsel Dumisa Ntsebeza by surprise. Counsel for the Constitutional Court Gilbert Marcus concurred, calling it “unprecedented”.

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