Forget Hlophe’s transgressions; look at the JSC

When the Western Cape Judge President is accused by his deputy of gross misconduct, one has a serious crisis.

When this follows upon allegations of serious impropriety that remain unresolved after a dozen years, it means the constitutional mechanisms of oversight are inadequate or have been subverted. If nothing is done to rectify the problem – suspension and a speedy investigation – one has a national, constitutional crisis that goes to the heart of the judiciary’s public credibility and standing.

Deputy Judge President Patricia Goliath lodged a formal complaint against her boss, Judge President John Hlophe, claiming verbal abuse, victimisation, preferential treatment of his wife and the assault of a fellow judge.

These claims – rejected by Hlophe’s lawyers as gossip and rumours – would, if proven true, suffice for Hlophe to be declared unfit for office. But they pale into insignificance compared to Hlophe’s alleged attempt to intervene in the judicial process to achieve political goals.

Goliath says that in 2015, Hlophe tried to interfere in a legal challenge to the agreement between SA and the Russian nuclear agency, Rosatom. She claims he “attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed to [Zuma]”, saying “criticism of Zuma with regard to the controversial nuclear deal was unwarranted”.

“I immediately dismissed the idea … Although unhappy, he did not pursue the matter and we agreed upon the two judges subsequently appointed.” By assuring an unbiased bench, Goliath saved SA an estimated R1 trillion when the deal was ruled unlawful.

This echoes 2008, when the Constitutional Court judges laid a complaint of gross misconduct against Hlophe after he allegedly tried to influence them to reach decisions favourable to Zuma in matters sprouting from the arms deal.

The Judicial Services Commission (JSC) dealt with the 2008 complaint by, astonishingly, simply deciding not to pursue it. That decision was overturned by a high court ruling. Hlophe then appealed to the Supreme Court – and lost – and is now pursuing a Constitutional Court appeal.

Neither Goliath, nor her Western Cape colleagues, emerge with their reputations intact. She has acted only because a cascade of insults and aggravations made daily life unbearable.

If it was a matter of principle, why did she not complain in 2015? And why did her colleagues ignore and cover up abuse and violence?

A scroll through Hlophe’s judicial career, as documented on Wikipedia, should suffice to convince one that this man was never judge president material. But that’s a minor issue in a country where top judicial appointments are often based on political affiliation and ethnicity, rather than jurisprudential excellence.

The far more important matter is that of the JSC, which exists solely to appoint judges and handle complaints against them – and has repeatedly shown itself afraid to do its job. It has had many complaints against Hlophe, brought from within every level of the judiciary that it has been appointed to oversee, going back to 2004. It has, so far, done everything possible to duck its responsibilities.

Hlophe’s behaviour has often been reprehensible. But the JSC’s behaviour is worse: it is a shameful betrayal of the constitution that established it.

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