/ 1 February 2009

Courting trouble

The next move belongs to Chief Justice Pius Langa third from left. Photograph: David Harrison
The next move belongs to Chief Justice Pius Langa third from left. Photograph: David Harrison

Cape Judge President John Hlophe has returned to work after nine months of special leave, throwing down a challenge to Chief Justice Pius Langa and Justice Minister Enver Surty.

Hlophe has been on leave since June last year while the battle over his alleged efforts to influence the Constitutional Court in favour of Jacob Zuma dragged on.

Surty has tried to facilitate settlement talks, amid fears that Hlophe’s clash with the country’s top judges could provoke a constitutional crisis.

His return is seen at the justice ministry and among judges critical of him as a repudiation of the talks and a declaration that he still aspires to a Constitutional Court job, and ultimately the post of chief justice, despite ongoing Judicial Service Commission and Supreme Court of Appeal processes.

Hlophe’s supporters agree. ”He is daring the justice minister to suspend him if he believes he has grounds,” said Hlophe confidant and legal adviser Paul Ngobeni.

Ngobeni was speaking after Hlophe sent a letter to Surty on Monday this week saying he intended to end his leave, and his reappearance at the Cape High Court on Tuesday.

Surty’s spokesperson, Xolile Nqayi, confirmed the letter had been received. He said that Hlophe had merely exercised his right to return to work after requesting extended leave.

Justice officials said that Surty was surprised and angered by the move, seeing it as a snub to his mediation efforts and ongoing legal processes.

It is understood the minister has tried to arrange a meeting with Hlophe since Monday, to no avail.

Cape High Court insiders and Hlophe sympathisers said he had timed his return to coincide with the Constitutional Court’s return to work and to position himself for one of the seats to be vacated by four of the court’s judges, and possibly even for the position of chief justice under a Jacob Zuma presidency.

Ngobeni said Hlophe had returned because he had been ”out too long” and was tired of living off taxpayers’ money. The settlement talks had ”stalled” and the stalemate was preventing him from ”reaching his best potential in the profession”.

”No one has ever said the man is incompetent and/or that he is not intelligent, he has a PhD from Harvard, for crying out loud,” said Ngobeni.

Most black lawyers and judges, he said, saw Hlophe as leading an ideological battle against a ”liberal” judiciary.

Hlophe also enjoyed Luthuli House’s support, he said, pointing to ANC secretary Gwede Mantashe’s reference to Hlophe’s woes at the ANC Youth League conference, where Mantashe called Constitutional Court judges ”counter-revolutionary”.

Ngobeni, an adviser to the ANC on Zuma’s legal predicament, said it would be unfair to suspend Hlophe when Constitutional Court judges ”who have a judgement hanging over their head” are still at work.

He was referring to the Johannesburg High Court finding that the Constitutional Court’s publication of a statement outlining allegations that Hlophe improperly tried to influence judges Chris Jafta and Bess Nkabinde infringed his right to dignity. An appeal is still pending.

Hlophe’s return has heightened outrage among his critics.

”The Council of the Bar called for him to stand down in the interests of the impartiality and independence of the judiciary until the disciplinary matters against him are resolved. They are not resolved. Who the hell does he think he is?” asked senior advocate Paul Hoffman.