After a decade Hlophe faces reckoning

It’s taken more than a decade but a judicial conduct tribunal is this week finally set to begin a new probe into allegations that Western Cape Judge President John Hlophe tried using his sway to curry judicial favour for former president Jacob Zuma in 2008.

After a number of protracted legal battles and a series of delays, the tribunal last week confirmed it would be hearing the matter from today to Friday.

The initial proceedings held in 2008, took place in Hlophe’s absence and the Judicial Services Commission (JSC) ended up dismissing the complaint against him but this prompted nongovernmental organisation Freedom Under Law to turn to the courts, where it managed to get the decision overruled.

A new tribunal was eventually scheduled for July 2018. It had to be postponed, however, after one of the three chairs, Judge Cagney Musi, recused himself on the back of allegations he had made disparaging remarks about Hlophe.

He denied the allegations.

The tribunal was then rescheduled for this October, but wound up being postponed again, this time due to Hlophe’s legal
representative and one of the complainants, Constitutional Court Justice Chris Jafta, being unavailable. Now, though, it looks
like D-Day has arrived.

The allegations against Hlophe date back to March 2008, when he is said to have approached both Jafta – then acting on the
apex court’s bench – and now retired Justice Bess Nkabinde to try and swing cases involving Zuma his way in a bid to secure his then pending presidency.

If true, the allegations could potentially amount to gross misconduct, paving the way for Hlophe to become the first judge in post-democratic South Africa to be impeached.

In terms of the constitution, there are only three categories of complaints which, if established, can get a judge kicked off the bench: incapacity, gross incompetence and gross misconduct.

But while a tribunal is the only forum that has jurisdiction to investigate these categories of complaints, it doesn’t get the final
say. The tribunal will compile a report, complete with recommendations, and submit it to the JSC.

And, if it were to recommend impeachment, the JSC would likely – but not necessarily – make the same recommendation to the president. He would have to refer the matter to the National Assembly, however, and only if two thirds voted in favour of the motion, would Hlophe be impeached.

In the meantime, though, Hlophe is also facing a separate judicial conduct tribunal in connection with the widely publicised complaint lodged by his deputy, Judge Patricia Goliath, in January.

In that matter, Hlophe is facing a barrage of claims, from giving his wife, Judge Gayaat Salie-Hlophe, preferential treatment, to
trying to allocate “favourably disposed” judges to a more recent case involving Zuma, to assaulting a fellow judge in his chambers.

And in July, Chief Justice Mogoeng Mogoeng found a tribunal was the correct forum to investigate these allegations too.

Dates for that tribunal, however, have yet to be set.

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