Western Cape judge president John Hlophe insists he is taking the Judicial Service Commission (JSC) to task over its gross misconduct finding against him for selfless reasons and not to frustrate constitutional processes.
On Wednesday, senior advocate Thabani Masuku criticised assertions that his client, Hlophe, had an agenda to influence the apex court’s decision in a 2008 case unduly.
Masuku told a full bench of the Gauteng high court sitting in Johannesburg (and presiding virtually) that Hlophe was well within his right to be concerned as to the legality of the JSC’s inquiry into his conduct, finalised in 2021.
He said the judge president’s concern about JSC compliance with the law did not amount to “manufactured paralysis” to evade accountability.
“We are here today because the JSC, having considered the matter, failed to apply its mind to a jurisdictional question relating to its composition,” said Masuku.
He said any suggestion that Hlophe’s review application was a delay tactic was wrong.
In fact, the challenge enriched the JSC’s processes. “The JSC must look and do a proper audit whether or not its processes are, in fact, consistent with its supreme responsibility of dealing with judicial misconduct complaints,” said Masuku.
While this application tackles the composition of the JSC’s Judicial Conduct Tribunal (JCT), some respondents claim that Hlophe is using the review to raise what amounts to an appeal. They claim Hlophe wants to have the merits and demerits of the original dispute ventilated and reconsidered.
“Let me assure the court that application is not brought for selfish reasons, or for self-serving reasons. The judge president has served as a judge president for over 20 years,” said Masuku.
“He has served with his colleagues, some of you, and he’s aware of the weighty responsibilities that are involved in the office of a judge president or in the office of a judge generally.
“To suggest that he would bring an application for the sole purpose for frustrating the completion of the constitutional process is in itself quite a serious allegation.” said Masuku.
Six months ago, the JSC referred its adverse finding of gross misconduct against Hlophe to parliament, marking the most advanced step towards a possible impeachment process against a judge in SA. Hlophe soon launched a legal response.
He wants the high court to review and set aside the JSC’s determinations against him, on the grounds that the group of the body that sat to consider the complaint against him — the JSC’s JCT — was constituted improperly.
Between absenteeism and recusal, there were three stand-ins on the JCT when it convened to address his matter in August.
This week, Hlophe’s motive for launching the review application was debated in court. On Monday, a full bench began three days of virtual proceedings in his case.
On Wednesday, judges Audrey Ledwaba, Roland Sutherland and Margaret Victor heard from senior advocate Steven Budlender, representing parliament’s speaker, Nosiviwe Mapisa-Nqakula.
Budlender tackled a plea Hlophe raised for the court to direct parliament to run an investigation of its own.
Budlender submitted that, as a matter of law, once the JSC fulfilled its role deciding on a judge’s conduct and referred its finding to the National Assembly for an impeachment vote, the latter was obliged to proceed. “It would be institutionally inappropriate for this court to intervene at this stage on the assumption that parliament won’t do the right thing,” said Budlender.
In 2008, Hlophe initiated talks about a live case with two justices of the Constitutional Court. The discussions led to a complaint against him, something the full apex court bench raised with the JSC.
Hlophe had spoken to justices Chris Jafta, then acting, and Bess Nkabinde. They were on the bench presiding over the matter involving now former president Jacob Zuma and arms company Thint.
When Hlophe sought out the judges for these talks, he raised the concept of legal privilege and shared his view that the appeals court had erred. The top court had by then heard pleadings, but had not yet ruled on the politically sensitive case.
Senior advocate Vincent Maleka for the JSC said on Tuesday that Hlophe expressed himself personally or professionally “in regard to a matter pending before the Constitutional Court with reference to a litigant. He even went further and said that that litigant was persecuted like he was.”
On the same day, Gilbert Marcus, counsel for several justices on the top bench at the time, doubted Hlophe’s depiction of the talks as mere collegial chitchat with no ulterior motive. Citing events in April 2008, including a phone call between Hlophe and Nkabinde, Marcus insisted there was “plain and unmistakable evidence of premeditation”.
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