Kriegler to challenge ruling that he retract remarks on Hlophe

Retired constitutional court justice Johann Kriegler will appeal a ruling by the Judicial Conduct Committee (JCC) that he must retract a statement to the effect that Western Cape judge president John Hlophe was not fit to be on the bench.

Freedom Under Law (FUL), the nonprofit organisation Kriegler chairs, said the finding that he had flouted the Judicial Code of Conduct was flawed. 

“Judge Kriegler and FUL believe that this finding is materially incorrect and adversely implicates important issues of principle and FUL’s work,” it said. 

“It will be appealed insofar as it upheld one of the complaints.  FUL endorses the public utterances made by Judge Kriegler in relation to Judge Hlophe.” 

The JCC ordered Kriegler to retract a comment, quoted by TimesLive on 1 March 2021, that Hlophe employed “contrived reasoning” in his acquittal of ANC MP Bongani Bongo on corruption charges. He was quoted in the same article as expressing the view that Hlophe was not fit to be a judge.

The committee in a ruling penned by justice Dumisani Zondi gave Kriegler 14 days to send an e-mail to the complainant, advocate Vuyo Ngalwana SC, to withdraw his remark.

“I am satisfied that a breach of article 11(f) of the code has been established. It is clear that the respondent’s statement that Hlophe JP was unfit to be a judge in circumstances where the JCT [Judicial Conduct Tribunal] had not found him guilty of gross misconduct, amounted to public criticism which is a conduct proscribed by article 11(f) of the code,” the ruling said.

The article states that courtesy and collegiality towards colleagues are indispensable attributes of a judge. 

“The respondent’s utterances about his fellow colleague were unfortunate and were not germane to scholarly presentation made for the purpose of advancing the study of law which is an exception recognised by article 11,” Zondi wrote.

The Judicial Conduct Tribunal in April last year found that Hlophe committed gross misconduct in 2008 in attempting to sway two justices of the constitutional court in sensitive rulings relating to the arms deal corruption case against then aspirant president Jacob Zuma.

Hlophe took the ruling on review in the high court and lost. He is appealing the ruling, and has signalled that he may mount a legal challenge to a call last month from the Judicial Service Commission for President Cyril Ramaphosa to suspend him without delay pending the outcome of the parliamentary process.

Ngalwana was a member of the legal team that represented Hlophe in litigation that ensued after the justices of the constitutional court lodged a complaint of gross misconduct against him in 2008.

Kriegler had retired by then. He has, however, been vocal in calling for Hlophe to face consequences. FUL successfully launched a legal review of a decision by the Judicial Service Commission in 2009 not to proceed with an enquiry into the complaint against Hlophe.

Ngalwana said the purpose of his complaint against Kriegler was “to vindicate the integrity, dignity and independence of the judiciary and the judicial system”, as he believed this had been compromised by his repeated utterances on Hlophe over more than a decade.

He argued that these had encouraged others, including journalists, “to publicly attack judges” and that Kriegler had breached at least nine articles of the code of conduct. The committee held that the complaint could be substantiated only in one instance.

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