“Judge Hlophe has engaged in unconstitutional acts which provide adequate grounds for his removal from the Bench for ‘gross misconduct’ as defined under South Africa’s Constitution.”
This sounds like one of Judge John Hlophe’s regular critics — a liberal advocate perhaps or an angry legal commentator — but this attack on the Western Cape judge president was authored by his staunchest defender, Paul Ngobeni, who last week quit his job as deputy registrar of legal services at the University of Cape Town partly because his lobbying for Hlophe had aggravated a long battle with his boss, registrar Hugh Amoore, and members of the law faculty.
In a lengthy email sent to Amoore on November 1 last year Ngobeni tears into Hlophe’s 2007 decision to hold in contempt a lawyer who had arrived late in his court. The decision to detain advocate Motlatsi Pitlele under the watch of an orderly for three hours “like a naughty schoolboy” was “a despicable gross abuse of [Hlophe’s] powers”, Ngobeni writes, adding that it “warrants public discipline”.
Citing a raft of precedent from the American courts where he worked as an attorney until he was disbarred, Ngobeni concludes: “My article calling for Judge Hlophe’s impeachment is almost complete and Judge Hlophe will be hearing from me very soon.”
There is a personal note too: “Furthermore, as a matter of common sense, let alone the professional implications, I find Judge Hlophe to be a complete jerk.”
The thrust of Ngobeni’s argument is that when he defended Hlophe in an October 2007 op-ed article that described attacks on the Cape judge president’s ethical record as a “lynching” by racist advocates and law professors, the flawed contempt ruling had not yet been made. He has now revised his opinion, the email suggests.
But he feels no warmer towards members of the UCT law faculty, principally former dean Hugh Corder and Professor Halton Cheadle, who were signatories to an open letter expressing concern about conflict of interest allegations against Hlophe involving his moonlighting for financial service group Oasis.
The saga illustrates, Ngobeni writes, “the racist unprincipled nature of the South African legal profession, including the law professors you are so infatuated with — The law faculty is unprincipled — they call for a man’s impeachment and removal from the Bench when the evidence of gross misconduct was insufficient … and they ignored that man’s same gross unconstitutional acts simply because his victim was a hapless BLACK advocate.”
The email forms part of the record in the disciplinary proceedings launched by UCT after Ngobeni’s vocal advocacy for Hlophe began to attract attention and a criminal investigation into his alleged misconduct in the United States was made public.
Ngobeni admits sending an email in January this year addressing some of these issues, but he claims the version obtained by the Mail & Guardian is not authentic.
“That is a fake [email]. It combines two emails,” he said, flatly denying that he ever called Hlophe a jerk. He did not, however, deny writing the criticism of Hlophe’s contempt decision that occupies the bulk of the email.
Sources familiar with Ngobeni’s attack on Hlophe, and with the disciplinary process, insist that the email is genuine.
Ngobeni’s outburst appears to have been sparked by a request from Amoore that if he participated in a planned SABC debate about Hlophe he would not “say anything that may make it more difficult to restore working relationships with our colleagues”.
Ngobeni told Amoore that he had declined to be interviewed, but that the debate had in fact intended to deal with his public criticism of former chief justice Arthur Chaskalson and celebrated advocate George Bizos over the legal processes surrounding Jacob Zuma.
“I did not write an email mixing the two things [Zuma and Hlophe],” Ngobeni claimed.
Writing in the M&G last month Ngobeni took a very different line. Hlophe was a brilliant jurist and the best possible candidate for chief justice, he said.
“His leading role as a champion and martyr of transformation shall withstand all hidden agendas to derail his judicial career. He is every one of us and when his name goes in nomination for chief justice the names of all the people who gave Zuma a mandate go in as well,” Ngobeni wrote — but the contempt decision gets no mention in that article.
The UCT disciplinary panel found Ngobeni guilty on a count of using language inappropriate for the workplace, but not of defaming his colleagues, and it declined to recommend his summary dismissal, suggesting that this would be a disproportionate remedy. It also highlighted a range of procedural and administrative missteps by UCT in its efforts to resolve the situation.
Hlophe told the M&G he had not seen the email.
Additional reporting by Sello S Alcock