/ 20 April 2021

FUL mulls legal options regarding Hlophe’s presence at interviews for Western Cape bench

The complaint against Judge John Hlophe was the first allegation of an attempt to influence the judiciary from within.
Former judge John Hlophe

Freedom Under Law (FUL) said on Tuesday it was weighing its legal options after the Judicial Service Commission (JSC) confirmed that Western Cape Judge President John Hlophe would take part in interviews this week of aspirant judges in the division.

The civil society organisation wrote to the JSC last Friday to ask who would replace Hlophe at the interviews, in light of the recent finding of the Judicial Conduct Tribunal that he was guilty of gross misconduct. 

It was one of three separate, formal pleas last week as to how the JSC should approach the unique case of Hlophe, pending a decision on whether he should be impeached.

The others came from Western Cape Premier Alan Winde, who wrote to Chief Justice Mogoeng Mogoeng asking that the interviews scheduled for Friday be postponed until after the JSC had deliberated on the findings of the tribunal, and the Cape Bar Council, which adopted a similar stance in a statement directed at the JSC.

The commission responded to FUL on Tuesday with a terse letter saying Hlophe would form part of the interview panel.

FUL’s executive officer, Nicole Fritz, said this contradicted an earlier position taken by the JSC in response to a  submission by the civil society organisation in 2016, that barring a suspension or adverse finding by the tribunal, nothing stopped Hlophe from continuing in his duties as judge president.

She said the JSC now appeared to be going against its own stated beliefs, and added: “We are at this point considering our further legal options.”

Winde, who sits on the JSC, said on Tuesday his request was discussed at a meeting of the board of the commission on Monday and rejected, but that he would nonetheless attend Friday’s interviews because he took his role in the selection of judges “very seriously”.

The Cape Bar Council cautioned in a media statement that Hlophe’s presence could taint the interview process.

The tribunal found that Hlophe’s separate approaches to Constitutional Court justices Chris Jafta and Bess Nkabinde in 2008 constituted a politically motivated attempt to sway them in a case pertaining to the corruption charges against then aspirant president Jacob Zuma and betray their oath of office, in breach of section 165 of the Constitution.

The findings could lead to Hlophe’s impeachment, but are still before the JSC at present. If the commission concurs with the tribunal, it will refer the matter to the National Assembly.

The bar council argued that the JSC should devote Friday to deliberating on the findings against Hlophe to avoid further delays in a matter that has dragged on for more than 12 years.

“In order to ensure a prompt process, the Cape Bar is of the view that consideration ought to be given to postponing the interviews for the Western Cape high court currently scheduled to take place on 23 April, and that this date be used to deliberate and decide on the report of the Judicial Conduct Tribunal and any representations received,” it said. 

“In addition, the interview process should resume only after the JSC has made its finding on the JCT’s report and any applicable representations. Such a course will also ensure that the serious findings of the Judicial Conduct Tribunal do not taint the judicial appointment process to the Western Cape high court.”

The council said it would refrain from remarking on the merits of the findings of the tribunal, given that these were now pending before the JSC, save to note that they were serious.

As such, any further delays in dealing with the matter on the part of the commission would serve to undermine the integrity of the judiciary and public confidence in it.

Hlophe responded to the release of the tribunal’s report by vowing to clear his name.

In a media statement issued by his lawyer, Barnabas Xulu, Hlophe returned to key points he raised in a 137-page submission to the tribunal. These included inordinate delays that have marked the process, and his objection that there is no clear charge for him to answer, because there was no enabling provision to make a breach of section 165 of the constitution an offence.

The tribunal earlier said this argument did not apply, because it was not subjecting Hlophe to criminal trial. Rather, its inquiry was concerned with principles of judicial probity and ethical standards, which barred a judge from one division from discussing the merits of a matter with judges of the court in which it is still pending.

Hlophe insists that “this approach is self-evidently wrong in that it fails to appreciate the statutory premise on which a complaint of judicial misconduct must be determined.”

The tribunal also held that the delays were in no small measure forced by Hlophe.

In his media statement, the judge president claimed that the tribunal was swayed by the partisan views of FUL, which is chaired by former Constitutional Court justice Johann Kriegler, and the Democratic Alliance, both of whom played a role in the trajectory of the complaint against him.

FUL and then Western Cape premier Helen Zille launched separate court challenges to the JSC’s initial decision in August 2009 that there was no evidence to support a finding against Hlophe of gross misconduct. 

Zille successfully argued in the high court that the JSC was not properly constituted when it reached its verdict. FUL succeeded in the appeal court with its argument that the JSC’s finding was unlawful.

Hlophe then turned to the Constitutional Court and lost. He has not indicated in which forum he intends to challenge the findings of the tribunal.