Assume that person A approaches a judge in chambers about a case in which the judge had reserved judgment. A tells the judge that if he decides the case in favour of the defendant, A will use his political influence to ensure that the judge will be promoted to a higher court. Could it ever be contended that, were these facts to be properly proved in court, A would not face a criminal conviction?
Well, a majority of the disciplinary committee of the Judicial Service Commission (JSC) took the view that because person A was Western Cape Judge President John Hlophe, it would be impossible to convict. Why?
Stripped to its essentials, the 150-page report from the majority amounts to this: as only a crime of gross misconduct can lead to judicial impeachment, and as gross misconduct is not defined, it is not possible to make a finding — even though we have already agreed that A would have to be convicted if the facts are properly proved.
Further, as neither of the two judicial witnesses, judges Chris Jafta and Bess Nkabinde, said more than that they inferred that Hlophe intended that they find for Jacob Zuma, the charge that Hlophe intended to influence the two judges had not been proved.
So the majority wants us to believe that if person A said the case must be decided properly and the defendant had been subject to sustained persecution, A had no intention of influencing the judge to deliver a particular result, nor, at the very least, that cross-examination of A would serve any further evidential purpose. This latter finding runs counter to the age-old view of lawyers the world over — that cross-examination is the best engine for finding the truth in any legal dispute.
In addition, we are informed that Hlophe was unaware of the practice in the Constitutional Court that judges do not discuss cases in the fashion he did with Jafta and Nkabinde. But this omits the critical point that Hlophe is not yet a member of the Constitutional Court.
On what possible basis did he then seek to debate a pending case, and why was evidence not heard about whether judges from one court ever discuss, as did Hlophe, a pending decision in a court of which they are not members?
Furthermore, it is difficult to dismiss the argument that Hlophe had a clear intention when he first spoke of the case to Jafta and then phoned Nkabinde to make an appointment to discuss the very same case.
Unsurprisingly, a minority — which appears to include the only two judges on the panel, and very senior ones at that: Judge Lex Mpati, president of the Supreme Court of Appeal and Judge Bernard Ngoepe, judge president of the Gauteng High Court — rejected this approach and considered that the inquiry should continue, thereby allowing for cross-examination of the witnesses. That possibility ended with the majority decision.
Consequently, the public will never be certain whether Hlophe is innocent of these very serious charges. That will sadly dog the judge’s reputation for as long as he is on the Bench.
Of course, there will be those who — such as a columnist in last week’s edition of the Mail & Guardian — claim that there is no taint on Hlophe in that the entire complaint is but another cunning move by whites to diminish the reputation of a prominent black South African.
Although, disgracefully, there is far too much of this racist practice, as with all conspiracy theories, it cannot explain all cases of alleged misconduct. In this case, the evidence that cannot be ignored is that the complainants included Chief Justice Pius Langa, Deputy Chief Justice Dikgang Moseneke and the chief justice designate, Sandile Ngcobo.
So what explains this unsustainable legal decision?
Given the presence of three senior counsel in the majority group, it is surely not legal naivety but rather, perhaps, an attempt to prevent the divisive move of impeachment proceedings.
Unfortunately, the poverty of the majority’s reasoning has dealt a serious blow to the credibility of the JSC. In turn, this creates a major problem for the implementation of judicial accountability — of which the JSC is a key custodian.
The Hlophe case afforded an opportunity to investigate a most serious complaint to finality and thereby reveal a fearless commitment to accountability and transparency.
The hopes of many who consider the JSC a key institution in the promotion of these democratic values appear to have been sacrificed on an altar of expedience.