John Hlophe misconduct saga several years from reaching a conclusion

It will be years before Western Cape judge president John Hlophe’s over a decade long gross misconduct saga is resolved, with the snail’s pace at which the Judicial Service Commission (JSC) has been acting catching plenty of flak from experts.

Hlophe’s defence team have indicated their intention to challenge the JSC’s recommendation that President Cyril Ramaphosa put him on suspension, meant to pave the way for impeachment proceedings.

Also Read: JSC recommends Hlophe’s suspension to Ramaphosa

Freedom Under Law (FUL), which has worked tirelessly to see the matter through, has lamented that Hlophe appears to be using the same elaborate mechanisms meant to protect judges against malicious complaints to stifle the processes against him.

The advocacy group, however, said the same mechanisms could be firmly implemented and used to speedily resolve disciplinary matters against judges.

Retired Constitutional Court Justice Johann Kriegler who heads the organisation, said matters of misconduct against judges must be dealt with quickly.

Defense mechanism

He explained that the Judicial Service Commission Act creates an elaborate machinery for the discipline of judges.

Kriegler said this was also a carefully constructed mechanism to protect judges against malicious complaints or unwarranted complaints.

“It is a nature of the job that they have to decide against people, so judges are vulnerable to complaints being made by disgruntled litigants, so the mechanism is meticulous in protecting judges,” he said.

The same mechanisms, he argued, could be firmly implemented to speed up judges’ disciplinary matter with firmness and haste, in order to save time which could be wasted on side issues and postponements.

Kriegler, however, said the elaborate defence process operated by certain judges was too long and that Freedom Under Law was working on how the situation could be improved.

Also Read: How the JSC failed our judges – and the public

“Now that his lawyers have announced the decision to challenge the decision, it will take years for the matter to be resolved. It will take not less than a year just for it to be enrolled,” he said.

Kriegler said in the meantime Hlophe, tainted as he is, remains at the helm of the Western Cape Hgh court division bench, in an environment that he described as toxic with his deputy Judge Patricia Goliath.

Delay strategist

Dr Llewelyn Curlewis, University of Pretoria legal expert, said Hlophe was obviously an expert in time delay tactics, but that for the JSC to take 14 years to finally make a recommendation was not only unacceptable but also a sign that something was amiss at the JSC.

Also Read: Outrage over Hlophe’s ‘delaying tactics’ as tribunal at standstill

“I am concerned if this is the type of delay tactics that can take place and tolerated in such a high-profile institution. This is not only an unacceptable behaviour, but also unacceptable for an institution like the JSC,” he said.

Curlewis said this did not look good for the justice system as a whole. It concerns the public and such conduct should be frowned upon from an integrity perspective.

“All in all, this is a question of justice delayed, justice is denied. However, we are very optimistic that at long last something is being done about this long outstanding issue that has been hampering the law for such a long time,” he said.

The JSC merely makes a recommendation to Ramaphosa, who would then have to decide whether to suspend Hlophe and start with the impeachment process, after which the national assembly must decide upon his fitness to remain in office.

But Curlewis anticipated that if Ramaphosa suspends Hlophe, he would most likely take the decision on review.

Tainted

The Hlophe matter stems from the JSC’s August 2021 findings that Hlophe had improperly tried to cajole two Constitutional Court (ConCourt) justices to violate their oaths of office by ruling in favour of former president Jacob Zuma in a matter related to the validity of searches during the arms deal investigation of Zuma and French arms company Thales’ local subsidiary, Thint, in 2008.

The commission concluded that Hlophe was guilty of gross misconduct based on the Judicial Conduct Tribunal’s findings.

The JSC’s report was sent to the National Assembly, which then referred the matter to the committee on justice.

The report was referred to the committee by National Assembly Speaker Nosiviwe Mapisa-Nqakula so they could consider the procedural aspects of the impeachment and report back to the House once done.