Disgraced Hlophe will stay on the bench for a while – analysts

Disgraced high court judge John Hlophe – found guilty of judicial misconduct for trying to influence the outcome of a case in favour of former president Jacob Zuma – may keep his seat on the bench for now because the process to impeach him has never been done before.

The closest any judge came to being impeached was when Judge Nkola Motata was found guilty of misconduct and eventually fined R1.1 million in 2019 … after a process which dragged on for 11 years.

Motata, who had already retired, was not impeached.

The difference between the two cases is that the misconduct by Hlophe is more serious. Hlophe was found guilty of trying to influence the judicial process, while Motata’s personal conduct – and his drunken racist outburst – was considered to have brought the judiciary into disrepute.

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Alison Tilley, a human rights lawyer, said Hlophe would keep his job until the necessary parties had a plan for his repercussions and that the judicial system was under attack due to not wrapping up court matters timeously.

“Hlophe will keep his job for some time to come. The Judicial Service Commission (JSC) still needs to decide on the way forward and if they decide for impeachment, Parliament will have to develop rules to deal with it, as they have never impeached a judge before,” Tilley said.

“The president could suspend him, pending the outcome of the process. The judicial system is definitely under attack, from outside and within, in that if the JSC can’t deal with conduct matters quickly, it will undermine confidence in the judiciary.”

Nicole Fritz, chief executive of Freedom Under Law, said the Judicial Conduct Tribunal’s report was clear and comprehensive in identifying why Hlophe was found guilty.

“The report not only makes plain and explained what Hlophe had done, but sets a valuable example for the guidance of everyone concerned with the judiciary integrity.

“In condemning this conduct in unambiguous language, the tribunal has finally put an end to 13 years of denial and delay. We trust the JSC will proceed with the disciplinary steps without delay and believe Hlophe should be suspended forthwith.”

The JSC Act also highlights the code of judicial conduct for judges that serves as a standard for them to adhere to, such as upholding the integrity of the judiciary and acting honourably and in a manner befitting judicial office.

Any breach of the code that equals to misconduct could result in a judge facing disciplinary action in terms of section 14 of the Act.

Eleven Constitutional Court judges laid a complaint against Hlophe more than a decade ago after Justices Chris Jafta and Bess Nkabinde claimed Hlophe had approached them separately in their chambers to try to influence them to rule in favour of former president Zuma and French arms company Thales in a case relating to the validity of search and seizures in the arms deal investigation.

The tribunal’s report was submitted to the chair of the JSC, Chief Justice Mogoeng Mogoeng, who is expected to determine Hlophe’s fate.

According to the JSC Act, the report on Hlophe will be referred to the JSC to decide whether the criteria for impeachment are met. If the commission agrees with the findings of the tribunal that Hlophe is guilty of gross misconduct, the matter would be referred to the National Assembly for a vote.

asandam@citizen.co.za