6 September 2019
More than ten years after two judges complained about his conduct, questions about Western Cape Judge President John Mandlakayise Hlophe remain unanswered, as Justice Edwin Cameron noted in his farewell speech.
Hlophe was appointed in 1995 at the age of 36 as the first black judge of the Western Cape High Court Division, and the first judge to join the bench directly from academia. In 2000, he was appointed as the Judge President of the Western Cape High Court Division — one of the youngest people to become head of a court.
In 2008 he was accused of improperly approaching Constitutional Court Justices Bess Nkabinde and Chris Jafta to influence the court’s judgment in several cases relating to former President Jacob Zuma, and French arms company Thint. These cases dealt with the lawfulness of search and seizures of Zuma’s home in relation to arms deal corruption.
Justice Nkabinde and then Acting Justice Jafta were among those who presided in four cases in the Constitutional Court, involving Thint, Zuma and the National Director of Public Prosecutions.
Judge President Hlophe is accused of visiting the chambers of the two judges, without invitation, towards the end of March 2008, after argument in the Zuma/Thint cases had been heard, and of trying to persuade them to decide the cases in a manner favourable to Zuma.
At the start of the court term in May 2008, Justice Nkabinde reported this approach to Justice Yvonne Mokgoro. Justice Mokgoro advised her to inform Chief Justice Pius Langa or Deputy Chief Justice Dikgang Moseneke, as the matter would affect the integrity of the judiciary and, if not attended to, would place it in peril.
Justice Nkabinde informed Chief Justice Langa of what had happened. Chief Justice Langa and Deputy Chief Justice Moseneke decided that in light of the seriousness of the issue, the Constitutional Court Judges should be informed of Judge President Hlophe’s conduct. The court held a meeting and agreed to refer the matter to the Judicial Service Commission (JSC). On 20 May 2008 the judges of the Constitutional Court unanimously laid a complaint to the JSC against Judge President Hlophe.
Judge President Hlophe laid a counter-complaint against the Constitutional Court judges, criticising the way they had announced their complaint to the JSC, stating that it infringed on his right to dignity.
Meanwhile, a Judicial Conduct Tribunal was set up to hear the complaint by the Constitutional Court judges.
The tribunal was to have begun its work in 2013. However, Justices Nkabinde and Jafta challenged the tribunal’s constitutionality, alleging that there was no valid complaint before the tribunal that could be investigated. The chairman of the tribunal, retired Judge Joop Labuschagne, dismissed their objections, and Justices Nkabinde and Jafta then approached the high court to challenge Judge Labuschagne’s ruling. In 2014 the high court dismissed their application. Justices Nkabinde and Jafta then approached the Supreme Court of Appeal, which also dismissed their appeal. As a last resort, Justices Nkabinde and Jafta then applied for leave to appeal at the Constitutional Court. In May 2016, the Constitutional Court dismissed their application.
Two years later, the Judicial Conduct Tribunal was scheduled to begin on 2 July 2018. The tribunal members and counsel convened at the Park Inn Hotel, in Sandton. Justices Nkabinde and Jafta had made themselves available to be called as witnesses. Judge President Hlophe was not present.
At the start, a member of the tribunal Judge Cagney Musi announced that the tribunal had received an urgent affidavit from Judge President Hlophe calling on Judge Musi to recuse himself because of disparaging remarks Judge Musi had allegedly made about him in 2017. Judge Musi denied the allegations but recused himself from the tribunal.
As a result, the tribunal could not continue its work. Judge Labuschagne postponed the tribunal sine die (which means that the date of the next hearing has yet to be determined). It is still unclear whether a date will be set anytime soon for the tribunal to convene, as Chief Justice Mogoeng Mogoeng must first appoint another judge to sit on the tribunal.
Did Judge President Hlophe adopt former President Zuma’s Stalingrad tactics, in respect of the tribunal? Could this be due to the fact that the tribunal could lead to Judge President Hlophe’s impeachment? Should the tribunal find that section 177(1)(a) of the Constitution should be invoked, then this could result in Judge President Hlophe being impeached. The JSC would have to decide on the next steps. For a judge to be impeached, the National Assembly must vote for impeachment by a two-thirds majority.
Judge President Hlophe, meanwhile, has also been the subject of other accusations.
Himself the author of a controversial 43-page report on racism in 2005 in which he accused deputy Judge President Jeanette Traverso, former Cape Judge President Edwin King and Jeremy Gauntlett SC of undermining him because he is black, he was accused of making derogatory remarks to attorney Joshua Greeff in 2004-5, allegedly telling him: “You’re nothing but a piece of white shit and it’s time you go back to Holland.”
Then, in April 2006, the African Christian Democratic Party (ACDP) accused Judge President Hlophe of accepting payments from the Oasis Group without statutorily required ministerial consent. Judge President Hlophe had been receiving a R10,000 monthly retainer from the company, which was known to litigate in the Western Cape High Court and was said to have received a total of R500,000 from the company. The ACDP complained to the JSC, citing an ethical problem with judges receiving remuneration outside their judicial duties. Judge President Hlophe did not deny receiving the retainer but said he had received verbal permission from the late former Justice Minister Dullah Omar to do so. The ethical issue was aggravated by the fact that Judge President Hlophe had granted permission, while receiving the retainer, for Oasis to sue Judge Siraj Desai for defamation.
In June 2006, the JSC was asked to investigate complaints relating to a possible conflict of interest. Judge President Hlophe’s son had received a bursary from a Cape Town firm of attorneys, Smith Tabata Buchanan Boyes. In Judge President Hlophe’s defence, Derek Wille, former partner in the firm who was also a university friend of Judge President Hlophe, said the payments had come from a bursary scheme “to help disadvantaged students”. In his own defence, Judge President Hlophe claimed he did not know who was paying for his son’s education and the JSC accepted his word.
In October 2007, the JSC decided by an undisclosed majority that there was insufficient evidence to proceed with a public inquiry into any of these allegations of misconduct.
However, the Western Cape Judge President once again found himself at the centre of attention in a Supreme Court of Appeal judgment handed down on 6 June 2017 in a matter between Matthews Tuwani Mulaudzi and Old Mutual Life. Mulaudzi was represented by Barnabas Xulu who was, and still is, Judge President Hlophe’s personal lawyer and represents him in matters before the JSC.
The case was set down for hearing on 18 September 2014. Judge President Hlophe was not one of the duty judges on the roster set down to hear urgent matters in the Western Cape High Court on that day. However, he allocated the matter to himself. He lifted the provisional restraint order and dismissed an application by the NDPP and Old Mutual to intervene in the matter.
On 11 November 2014, both the NDPP and Old Mutual applied for leave to appeal the judgment made by Judge President Hlophe. One of the grounds raised was that Judge President Hlophe was biased when he made his ruling.
The Supreme Court of Appeal noted in 2017 that the “application of well-established principles to the present matter raises the question whether Hlophe JP should have heard a matter in which one of the parties, Mr Mulaudzi, was represented by his personal attorney. The attorney, Mr Barnabus Xulu, currently represents Hlophe JP in disciplinary proceedings pending before the Judicial Service Commission (JSC) regarding allegations that he approached two Justices of the Constitutional Court in an attempt to improperly influence that court’s pending judgment in a case involving the President of the Country. The proceedings are yet to be finalised and have generated much public debate and controversy.”
The court continued: “The long-standing professional relationship between the Judge President and his personal attorney, who has represented him in various judicial and quasi-judicial tribunals since approximately 2009, and who continues to do so, in grave disciplinary proceedings, gives rise to the reasonable apprehension that in the light of the particular nature of that relationship, the Judge President would not bring an impartial mind to bear on the adjudication of a matter brought before him by his attorney.”
The court concluded that it had no doubt that the complaint by the NDPP and Old Mutual that Judge President Hlophe did not bring an open and impartial mind to bear on the adjudication of the matter was justified.
Whether or not the JSC will act on this is not known, since the JSC does not report to the public on complaints received or on its proceedings.
A cornerstone of any definition of judicial governance is the Bangalore Principles of Judicial Conduct of 2002. These identify the importance of a competent, independent and impartial judiciary for the protection of human rights, and note that “the implementation of all other rights ultimately depends on the proper administration of justice.” A competent, independent and impartial judiciary is essential for courts to uphold constitutionalism and the rule of law, and public confidence in the judicial system is identified as being “of the utmost importance in a modern democratic society.” The principles place the primary responsibility for promoting and maintaining high standards of judicial conduct on the judiciary itself, and aim to establish standards for the ethical standards of judges, presupposing “that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards”.
The principles then go on to establish six guiding values: independence; impartiality; integrity; propriety; equality; and competence and diligence.
In South Africa, the role of the judiciary itself in upholding these standards is critical, and they have been found wanting.
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