It is now more and more apparent, if it had not been before, that there is rot beneath the surface where Judge President John Hlophe is concerned, and his shenanigans over the past two decades make him a menace to the proper administration of justice and to the delivery of the guaranteed right to a fair trial as entrenched in the Bill of Rights, writes Glynnis Breytenbach.
The judge president of the Western Cape High Court, John Hlophe who was appointed to lead the Bench in 2000, has had a career overshadowed by a variety of controversies.
This is something that should never become a behavioural norm for one who pronounces judgment in our courts. The judiciary needs to be seen to uphold the laws, not just in court, but also in all aspects of life, and be seen to be free from bias or favour. Judges must be persons of integrity, independence and impartiality.
One of the controversies surrounding Hlophe is his alleged attempt to unduly influence Constitutional Court justices Bess Nkabinde and Chris Jafta to find in favour of Jacob Zuma and the Thint company in an appeal in 2008. This complaint has yet to be dealt with some 12 years later.
But even prior to that, reports of highly unethical, biased, unlawful, and even criminally illegal behaviour have been stacking up against Hlophe.
In 2005, it was reported he called an attorney, Joshua Greeff, a “piece of white sh*t”. He was also reported to have boasted that he had assigned a case about rights to education to a particular judge because he was likely to “f**k it up”.
In 2006, the Judicial Service Commission received a complaint Hlophe (or a family trust set up for the purpose) had been receiving a monthly retainer from the Oasis Group, a frequent litigant in the Western Cape High Court, and he had failed to declare this benefit, either to SARS or to Judge Siraj Desai before making a ruling in an application involving the same group’s request for permission to sue his colleague for defamation.
Questionable court judgments
In an unrelated case in the same year, Hlophe denied having knowledge of “bursary” payments being made toward his son’s education by a firm of Cape Town attorneys, regular litigators in the Western Cape High Court.
Questionable court judgments litter the space between his appointment in 1995 and the 2008 complaint by the Constitutional Court justices.
Twelve years after the justices’ complaint, the case is still to be adjudicated – due to a highly questionable, yet successful, Stalingrad strategy employed by Hlophe that has involved numerous court applications and counter-applications as well as appeals.
Currently, the Judicial Conduct Tribunal is set to sit from 26 to 30 October 2020, and it is hoped the 12-year-long impasse will finally be brought to an end.
2017 saw an allegation levelled against Hlophe of improper conduct, in the form of a conflict of interests, when he assigned an urgent application to himself, despite not handling the urgent roll that day, where the applicant in whose favour he pronounced was being represented by Hlophe’s own attorney.
Moving on to 2020: an allegation as serious as the 2008 complaint by the Constitutional Court justices surfaced in the form of a complaint by Western Cape Deputy Judge President Patricia Goliath.
Her complaint alleges gross misconduct, with the details of the acts ranging from improperly influencing judicial appointments, preferential treatment of family members, assault and workplace bullying, not to mention attempted gerrymandering of the allocation of the nuclear procurement review to judges sympathetic to Zuma.
Hlophe has denied the complaint of assault on oath. His victim has also sworn an oath that the assault took place and he is corroborated by several judges and by a contemporaneous affidavit. Both can’t be right; if Hlophe has sworn falsely, which is more than probable, he has committed the crime of perjury.
It is now more and more apparent, if it had not been before, that there is rot beneath the surface where Hlophe is concerned, and his shenanigans over the past two decades make him a menace to the proper administration of justice and to the delivery of the guaranteed right to a fair trial as entrenched in the Bill of Rights.
There is a desperate need for swift, sure and fair disciplinary measures to rid our courts of their questionable characters. It is an indictment on those of us concerned with the disciplining of judges Hlophe has faced no consequences for so long. Too much has been swept under the carpet, too little has been done to bring him to book.
South Africans look to the courts to protect rights afforded by the Constitution and to also be the moral compass of our society. Given the recent past of attempted state capture and other massive criminal enterprises operating with impunity in South Africa, we cannot afford a tainted Bench of questionable integrity.
The time for Hlophe to answer for his alleged serial misconduct is now. He would be well-advised to resign forthwith rather than face the consequences of his likely perjury. He has done untold harm to the reputation and morale of the Bench he is supposed to lead.
– Advocate Glynnis Breytenbach MP is the DA‘s spokesperson on justice and correctional services.
