/ 10 October 2022

Hlophe grills aspirant Western Cape judges

Hlophe has been the Judge President of the Western Cape Division of the high court — the most senior judge in the division — since 2000.
Western Cape Judge President John Hlophe

Eighteen months ago, the Judicial Service Commission (JSC) allowed interviews with aspirant candidates in the Western Cape high court division to proceed with Judge President John Hlophe present, despite caution that it could taint the process as he recently had been found guilty of gross misconduct.

On Monday, with the JSC having confirmed the finding by the Judicial Conduct Tribunal that he had breached the Constitution, and recommended that he be suspended by President Cyril Ramaphosa pending an impeachment process, Hlophe again took part in interviews with aspirant judges in the division, this time in bruising fashion.

Hlophe made plain his displeasure with the record of acting judge Alma de Wet, despite having allowed her to serve six terms in that capacity at his invitation, after grilling her at some length on transformation.

He asked how many of her judgments in those six terms were reported. De Wet replied there was only one, but added that in the last two terms she had little scope in this regard as she had been among those judges he had allocated to deal with the backlog in criminal matters. 

Hlophe then asked how many criminal trials she had completed. She said none so far, although she was nearing completion of a human trafficking case, but had handled battles like bail reviews.

Hlophe said he would like to hear De Wet’s understanding of transformation. 

She answered it was a work in progress where the desired endpoint was that everyone, regardless of race and gender, should eventually enjoy equal opportunity. 

“There is a second level of transformation, which is the mindset,” Hlophe noted. 

De Wet agreed and Hlophe reminded her that, under apartheid, there were degrees of discrimination and that Africans endured the worst. Given that, he asked, why did she think a white woman should be appointed when there were four candidates for a single vacancy.

“You would like us to recommend you for appointment, notwithstanding that you have acted for six terms and you only have one reported judgment and other candidates have five. Secondly, notwithstanding that you have not finalised a single criminal trial and thirdly notwithstanding the obvious delays which have been highlighted in terms of you handing down judgments, notwithstanding your experience of an advocate for 25 years, you are still delaying in handing down judgments,” he said.

“I can tell you from my experience as a judge president, candidates who delay in handing down judgments when they are still acting only become worse after their permanent appointment. So, if it takes you six months to produce a judgment, the moment you are appointed, it will take you six years. So, notwithstanding all of that, we are asked to recommend you for appointment.”

De Wet began answering but was cut short by Hlophe, who said he had nothing further. 

The next candidate to be interviewed was regional magistrate Noluthando Nziweni. 

With a nod to the presence of newly appointed commissioner advocate Tembeka Ngcukaitobi – who has written extensively on dispossession and the failure of land restitution efforts – Hlophe said he was going to steer the interview towards land rights.

“I am glad Mr Ngcukaitobi is here now; I am going to turn [up] the heat. Let’s talk about the land,” he said.

There were those political parties, Hlophe continued, who believed there was a need to amend section 25 to the effect that explicit provision should be made for expropriation without compensation.

“There are those who believe that, no, there is no need to amend section 25. Let me hear your views in that regard,” he said.

The candidate began by saying that the topic was a contentious one, and deputy Chief Justice Mandisa Maya, who is chairing the interviews, intervened to caution that answering might prove awkward because a case involving this question might yet serve before her.

“Your answering this question now, does it not mean that you will have to recuse yourself … if you state your view today on this question which may well turn out to be a legal question raised in a court of law?” she asked.

Ngcukaitobi teased that he would like to hear her hypothetical stance, to which Hlophe replied that he would not allocate land cases to her, before acknowledging that Maya had a point and withdrawing the question.

In April last year, the Cape Bar Council issued a media statement asking the JSC to use the time it had allocated to interview candidates in the division to deliberating on the finding of the tribunal that Hlophe had committed impeachable conduct by attempting, in 2008, to sway justices of the constitutional court on pending cases relating to the arms deal corruption charges against then aspirant president Jacob Zuma.

Western Cape premier Alan Winde wrote to the JSC to express the same view. Freedom Under Law sent a lawyer’s letter asking who would present the Western Cape division in those interviews in Hlophe’s stead, given the tribunal’s pronouncement, and received a terse reply that he would not be replaced.

In August 2021, the JSC endorsed the finding that he should face impeachment. Hlophe launched a legal review and lost in the high court. An appeal is still pending. Hlophe again took part in interviews with candidates in the Western Cape in October last year, and opined that the division was plagued by racism and forum-shopping on the part of counsel.

In July this year, the JSC recommended that Ramaphosa suspend him. 

Hlophe has responded to this with another legal challenge, asking in papers filed in August that the high court declare the JSC’s advice to the president unlawful, unconstitutional and invalid.

In the meanwhile, an appeal panel of the Judicial Conduct Committee has recommended that an impeachment tribunal be instituted to investigate allegations of misconduct that Hlophe and his deputy Patricia Goliath made against each other in early 2020.

JSC members on Monday confirmed that they had deliberated behind closed doors about Hlophe’s participation in the Western Cape interviews. The discussion was described as “cordial”.