John Hlophe faces further hurdles in his fight to avoid becoming the first judge to be impeached in democratic SA.
As of Monday, he faces more adversaries — including former justices of the Constitutional Court — in the battle of his career. Six of SA’s most prominent jurists and a legal nonprofit chaired by a former justice of the country’s highest court are now parties to Hlophe’s case.
He is seeking a review of an adverse finding by the Judicial Service Commission (JSC), which found him guilty of gross misconduct for alleged efforts to influence two top judges in former president Jacob Zuma’s favour in 2008.
On Monday, a full bench of Gauteng’s high court sitting in Johannesburg allowed six retired Constitutional Court justices and nongovernment organisation Freedom Under Law (FUL), which is chaired by retired apex court justice Johann Kriegler, to become involved in the case as respondents to Hlophe’s review.
Hlophe, who is judge president of the Western Cape, did not oppose the six retired justices being joined to the matter. During a hearing earlier this month, however, he argued against FUL participating as a respondent.
Retired deputy chief justice Dikgang Moseneke and fellow retired justices Yvonne Mokgoro, Kate O’Regan, Albie Sachs, Johann van der Westhuizen and Zak Yacoob are now respondents, as is FUL.
With seven parties joining the fray between Hlophe and the JSC, the tally of legal opponents has more than doubled. This presents a challenge to Hlophe, since FUL has been involved in the saga for more than a decade.
The JSC remains the first respondent. It is a constitutional body responsible for choosing almost all judges in SA and handling allegations of misconduct against them. Its 23 members include judges, legal professionals and politicians.
Gauteng deputy judge president Roland Sutherland wrote Monday’s judgment with fellow deputy judge president Audrey Ledwaba and judge Margie Victor concurring. “This matter is another chapter in a protracted controversy concerning the allegation that Hlophe tried to suborn two justices of the Constitutional Court to pervert their judgment to favour president Jacob Zuma, as he then was,” Sutherland wrote.
“The reputation of FUL in this regard is beyond doubt because it has repeatedly been recognised as such by our courts […] FUL has been actively involved in the saga,” the judgment read.
It found the NGO’s participation is justified “based on its own interest, having regard to its raison d’être and its prior involvement in the matter and also in the public interest for which it is an agent”.
The court viewed some of Hlophe’s statements opposing FUL’s involvement “paradoxically” supportive of it being joined. They included his remarks on the NGO’s acute interest in prior cases and the progress of the JSC’s inquiry.
Hlophe argued Kriegler’s critical remarks about him in public disqualified the NGO he chairs from participating. “This perspective loses sight of the test for the joinder which does not involve a qualitative evaluation of the merits of a party’s viewpoint,” the judgment read.
Sutherland did not rule out the prospect that during the review Hlophe might gain “some mileage” from “this partisanship or hostility, though none occurs to [Sutherland] on the material before [him] at this time”.
The court found FUL’s investment in the case to be “palpable” and long-standing. “The issue in the review in question is a question of profound constitutional importance. FUL has been engaged in this case at earlier stages of its evolution,” Sutherland wrote.
Hlophe’s interlocutory application was dismissed with costs. He argued the high court should dismiss FUL’s replying affidavit over a technical blunder because it did not address his submission point by point as required by a court rule.
The court found the rule applied to pleadings, however, and “the argument that a prejudice inured to Hlophe JP because of the absence of a point-by-point reply to the statements in the answering affidavit is wholly unsubstantiated”.
The JSC found Hlophe guilty of gross misconduct in August. Even so, two months later he participated in the JSC’s interviews for would-be judges in his division. He questioned applicants, who are assessed on whether they are fit and proper to serve in the judiciary.
A scan of the review application’s updated list of the actors involved reflects just how extraordinary the case is set to be: it was brought by the Western Cape’s top judge, Hlophe, against a constitutional body, the JSC, on which he serves; six previous justices in SA’s uppermost court have now joined; and, an NGO chaired by a seventh retired apex court justice, is a respondent.
Oral argument is set down over five days in February 2022. With so many respondents to the matter, it is probable the court will need more time to hear submissions.
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