The Judicial Service Commission (JSC) has confirmed that it will meet on 4 June to deliberate the recent finding of gross misconduct against Western Cape Judge President John Hlophe for seeking to influence two judges of the constitutional court 13 years ago.
The date is set out in a letter from JSC secretary Sello Chiloane to the Cape Bar Council, sent in reply to its request that the commission consider postponing interviews with aspirant judges in the division, scheduled for Friday.
The bar council submitted that Hlophe’s presence might taint that process, given the seriousness of the findings against him, and asked that the JSC rather use the time to weigh the report of the Judicial Conduct Tribunal (JCT) released on April 10.
“Your view that the JSC should postpone the scheduled interviews and utilise that date to give consideration to the Judicial Conduct Tribunal’s ruling pertaining to Hlophe JP is, with respect, unachievable in the circumstances,” Chiloane said in response.
He noted that the ruling came “barely a day” before the JSC began its current round of interviews, leaving the commission no time to deal with it. Nor could this be done in a day. “There are practical hurdles.”
The process entailed allowing Hlophe to make representations as to whether the JSC should endorse the finding, and commissioners needed to be given the tribunal’s full record. “Neither the record, nor the representations are currently in place,” said Chiloane.
“A timetable has been set for these processes to take place and the JSC has accordingly scheduled a meeting to specifically consider the JCT’s ruling on Hlophe JP to take place on 04 June 2021.”
Turning to the bar council’s request that Friday’s interviews be postponed, Chiloane said there was no legal impediment to the interviews proceeding as planned, and there were practical and other reasons for a delay not being possible.
All candidates had made arrangements to be in Sandton on the day and none had raised similar objections to Hlophe’s participation. “[And] postponing the interviews will come at a great cost to the public, including right of access to courts.” he said.
Chiloane said commissioners exercised their independent opinion of candidates and Hliophe’s participation was no different to that of other commissioners.
The JSC last week received three formal approaches regarding Friday’s interviews. Civil rights organisation Freedom Under Law inquired who would take Hlophe’s place given the tribunal’s findings and was similarly told he would participate as planned.
Western Cape Premier Alan Winde, who is a member of the JSC, had asked that the interviews be postponed until the JSC had reached a conclusion as to whether it will recommend Hlophe’s impeachment. His request was rejected at a tense meeting of the JSC on Monday night.
Winde indicated that he accepted the decision but Freedom Under Law said it was considering its legal options regarding the position taken by the JSC.
The commission sent copies of its letter to the bar council, Freedom Under Law and Winde.
Hlophe has indicated that he will contest the tribunal’s finding. His reasons include the delays in the matter and the absence of a clear charge against him in statutory law.
The tribunal had, in its report, dismissed these, saying the delays were largely of his own making and the process pertained not to a charge in law but the flouting of legal principle and ethical standards in seeking to sway justices of the apex court to betray their oath of office.
Hlophe also ventured that the tribunal was swayed by the partisan views of the Democratic Alliance and the Freedom Under Law chairperson, retired constitutional court justice Johann Kriegler.
Freedom Under Law and then DA premier Helen Zille separately and successfully challenged a decision by the JSC in 2009 to dismiss the gross misconduct complaint against Hlophe for lack of evidence.