/ 6 August 2022

Hlophe cases highlight difficulty in holding judges to account

The president’s decision comes five months after the Judicial Service Commission recommended the step. Picture: Werner Beukes/SAPA

News Analysis

Last Monday the Judicial Service Commission (JSC) announced it had taken the extraordinary step of advising President Cyril Ramaphosa to suspend Western Cape judge president John Hlophe

That Friday, the Judicial Conduct Committee (JCC), a sub-committee of the JSC, sanctioned retired constitutional court justice Johann Kriegler for calling Hlophe unfit to be a judge.

In a way, Hlophe’s cases illustrate the institutional dysfunction of a system meant to discipline and hold accountable people who wield enormous power — judges. How so? The judicial misconduct system has been (and still is) ineffective in holding judges accountable when complaints are filed. Some problems are structural — at one point there was just no system to speak of and the JSC was dealing with complaints as they came in, within the confines of procedural rules unsuited to the task.

When a formal system with a standing JCC and judicial conduct tribunals was established through legislation, it was dogged by delays caused by endless litigation.

Loopholes in the system also made it vulnerable to this litigation from inception. These include numerous, convoluted levels of decision-making which are wide open to court reviews — even on unmeritorious grounds —but which nevertheless cause delay, the so-called Stalingrad strategy.

Similarly, the JCC, meant to adjudicate complaints against judges, is by law exclusively composed of judges still in active service, meaning their work on the committee competes with their heavy workload. This flaw should have been foreseen.

It makes sense to have retired judges carry out this disciplinary task. Not only do they have time to do the work but, thanks to their long years on the bench, they have practical insight into judicial ethics and how judicial misconduct manifests.

More importantly, it avoids the awkward situation where a member of the JCC has to sit alongside a fellow (sometimes senior) judge whom they are disciplining for misconduct.

The judicial misconduct process is also frustratingly opaque. Until recently, the JSC did not publicly disclose annual reports, although the law required they report to parliament. As a result, there is scant information about the health of the  judicial misconduct system and even the published reports give little insight. 

There are no year-on-year comparisons which would allow tracking of  the progress of complaints over the years. This is against the well-established fact that serious misconduct complaints take several years to finalise.

In addition, the JSC has no dedicated administrative staff to receive and process complaints, unlike countries like New Zealand and the UK, where a dedicated bureaucracy deals with judicial misconduct cases.

Upwards of 90% of misconduct complaints are filed by disgruntled litigants who use the system as an alternative to appeals or reviews. These complaints are summarily dismissed, as the JSC is prohibited from investigating court judgments. However, the few cases relating to serious misconduct clog the system.

The cases involving Hlophe illustrate the structural weaknesses in the system perfectly. 

Chapter 8 of the Constitution vests the judicial authority of South Africa in the courts. Section 165 guarantees judicial independence, commanding the courts to apply the law without fear, favour or prejudice and subject only to the Constitution. No person or organ of state may interfere with the functioning of the courts. This latter part of section 165 formed the basis of the charge against Hlophe, which set in motion the chain of events we’ve seen over the past 14 years. 

In May 2008, the 11 justices of the constitutional court filed a complaint with the JSC accusing Hlophe of gross judicial misconduct for attempting to influence two of their members in cases pending before the apex court involving Jacob Zuma and arms manufacturer Thint. They alleged Hlophe, through a series of meetings with justices Bess Nkabinde and Chris Jafta, had sought to persuade them to rule in Zuma’s favour. Shortly after the justices filed the complaint, they issued a media statement.

Hlophe denied the allegations and filed a counter-complaint, alleging the justices were themselves guilty of gross misconduct by issuing a media statement before he could respond to their complaint. He also accused the chief justice and deputy chief justice of pressurising Jafta and Nkabinde to file the complaint against him.

At the time of the initial complaint against Hlophe, the JSC did not have a system of dealing with judicial misconduct complaints, even though the Constitution requires that it must.

The JSC therefore took a pragmatic approach of dealing with both the complaint and counter-complaint within the confines of its then rules. It conducted oral hearings and gathered statements from each judge. Ultimately, the JSC decided, by a split vote, to dismiss both the complaint and counter-complaint, finding that none of the judges had committed gross misconduct and concluding that the matter was finalised.

A minority of the JSC recorded in the final decision that, due to the mutually destructive versions provided by Hlophe and the justices, it would have been better to test the evidence through cross-examination at a properly constituted hearing where witnesses could testify.

Partly based on this minority view, Freedom Under Law (FUL) took the JSC’s dismissal of the complaint on review in the high court. The judge agreed with the JSC and dismissed FUL’s review application. On appeal, the supreme court of appeal (SCA) reversed the high court’s decision, finding that the JSC’s decision to dismiss the complaints without first testing the evidence through cross-examination to be irrational. 

The SCA sent the complaints back to the JSC for proper investigation.

In the meantime, the ground had shifted. Several amendments to the JSC Act were made, and these ushered in a new judicial misconduct system in 2010. At the core of this was a written Code of Judicial Conduct and a six-member JCC chaired by the chief justice and comprising its deputy and four other judges. The JCC would receive, investigate and adjudicate judicial misconduct complaints that would not be sufficiently serious to warrant impeachment.

There would also be a Judicial Conduct Tribunal, presided over by two judges and a practising lawyer, with a public prosecutor as evidence leader. It would investigate the most serious complaints of judicial misconduct that could lead to impeachment.

Importantly, both the JCC and JCT would be run by judges, in line with international best practice. However, both bodies would report to the JSC. Furthermore, all complaints now had to be submitted through an affidavit — gone were the days of a general complaint statement, with or without a media statement.

The excitement that met these reforms was short-lived. Soon after the JSC referred the Hlophe complaint to the JCC and, subsequently to the tribunal, Nkabinde and Jafta took the JSC to court demanding a reversal of the referral decision on the grounds of unconstitutionality. Their key argument was the JSC could not decide a 2008 complaint under the system introduced in 2010.

A full bench of three high court judges dismissed their application. So too did the SCA. The constitutional court declined to hear their appeal as most of the members of that court had to recuse themselves due to prior involvement in the Hlophe saga.

The Concourt was, therefore, inquorate and could not entertain the appeal. Bizarrely, Nkabinde and Jafta applied for a rescission of that judgment, which was also dismissed. Gauteng high court Judge Nkola Motata brought a similar court challenge against the JSC, which was dismissed but caused a delay.

When nearly a decade of this litigation wrapped up, the judicial misconduct system kicked into action in 2017. The JCC received a steady stream of complaints. 

In addition to Hlophe and Motata, four Gauteng judges (Ferdi Preller, Ntsikelelo Poswa, Moses Mavundla and George Webster) were being prosecuted in the tribunal for failing to deliver judgments on time. KZN judge Anton van Zyl  faced similar charges. The only trouble was, except for the Hlophe tribunal, none of the others did their work in public, which shows the opacity of the system. The JSC announced the outcomes of some of those tribunals but never the prosecution.

We know now Motata, Preller, and Poswa were found guilty of gross misconduct but got a slap on the wrist. Motata was fined R1-million, while the others submitted written apologies. We do not know what happened to Webster and Van Zyl.

In April 2021, the Hlophe tribunal found him guilty of gross misconduct, upheld by the JSC that August, while also recommending his impeachment. As one might have guessed, that decision is now subject to further litigation in the courts.

In the meantime, other cases involving Hlophe have come up. In January 2020, Western Cape deputy judge president Patricia Goliath filed a gross misconduct complaint alleging that Hlophe assaulted fellow judge Mushtak Parker. Hlophe filed a counter-complaint accusing Goliath of lying. More than two years later, both complaints are still tied up in the JCC’s convoluted process, as is a related complaint by 10 fellow Cape judges who accuse Parker of lying under oath about the assault.

Although the JSC’s recommendation that Hlophe be suspended is significant, it seems to only be a bump in a road spanning 14 years, with more to come. The blame for the delays may correctly go to Hlophe and other judges, but a large part of it lies with the JSC itself and parliament for legislating an unworkable system. 

The last decade has shown the judicial misconduct system is overdue for a revision and streamlining.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at the University of Cape Town law faculty.