Latest Hlophe scandal puts JSC under scrutiny

The publishing of a leaked complaint to the JSC about Judge John Hlophe is a godsend – because it means that the JSC will now face public scrutiny about how it handles the issue. The time is overdue for greater transparency when it comes to mechanisms for holding judges and magistrates accountable. So says Rebecca Davis in a Daily Maverick analysis. A complaint laid by Western Cape Deputy Judge President Patricia Goliath with the JSC in mid-January has detonated like a hand grenade in the legal profession, accusing Western Cape Judge President John Hlophe of a litany of offences – ranging from the attempt to influence judicial appointments to a physical assault on a fellow judge. However, notes Davis, the charge sheet against Hlophe had been building steadily for over a decade. In addition to the well-known allegation that Hlophe attempted to influence the Constitutional Court’s judgment in favour of President Jacob Zuma in a matter related to arms deal corruption in 2008, Hlophe has also been accused of:

* Calling attorney Joshua Greeff a 'piece of white shit' who should 'go back to Holland' (2004/5).

* Accepting a R10 000 monthly retainer from fund management company The Oasis Group, which frequently litigated in his court (2006).

* Operating under a conflict of interest by permitting his son to accept a bursary from a Cape Town attorney firm (2006).

* Allocating himself a case which he should not have heard as one of the acting attorneys was Hlophe’s personal lawyer (2014).

We know very little about the first three cases, notes Davis. That’s because, as Judges Matter researchers Zikhona Ndlebe and Alison Tilley report: '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.' The 2014 conflict of interest case went to the Supreme Court, meanwhile, which concluded that Hlophe could not have brought 'an impartial mind to bear on the adjudication of a matter brought before him by his attorney'. Said Ndlebe and Tilley: '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 findings.' In other words, writes Davis, what the JSC does or does not do when it comes to allegations of misconduct against judges is largely shrouded in secrecy. 'The leaking of Goliath’s affidavit has blown this modus operandi out of the water in a welcome fashion.'

Despite the clamour to take the three protagonists out of the equation pending resolution of the matter, it’s unlikely to happen. That much seems evident from an examination of the issue by legal writer Franny Rabkin in the Mail & Guardian. Under the Constitution, the JSC Act and regulations applying to judges, there are two ways to temporarily remove a judge, says Rabkin – a suspension or when the judge is put on special leave. The Constitution says a judge may be suspended by the President ‘on the advice’ of the JSC when the judge is subject to an impeachment procedure. The Act then sets out what must happen in order for a judge to be subject to an impeachment procedure, and there are a number of steps. The Judicial Conduct Committee (JCC) must first get responses from the judge and complainant and may ask for further evidence. The judges may also ask to give oral evidence to the committee. The committee then compiles a report and makes a recommendation to the JSC on whether there is a case to answer for impeachable conduct. The JSC then meets to decide whether it agrees. If it does, it can request the Chief Justice to establish a judicial conduct tribunal. It is at this point that a judge can be suspended. All of this takes time, although, as Rabkin points out, theoretically, it needn’t be that much time but the JSC does not have the best record for speed.

Special leave is different and much easier to achieve – except that it has to be asked for by the judge concerned. With the 2008 complaint, Hlophe asked for special leave and it was granted by former Justice Minister Brigitte Mabandla. But when he got fed up of it, he ambled back into his court and no one had the power to prevent it, notes Rabkin. Chief Justice Mogoeng Mogoeng said in a letter to the Cape Bar that even if the public is calling on him to act, ‘legality forbids that any of us acts to please the public … The Chief Justice does not have the power to have a judge go on leave of any kind or to suspend a judge.’ All true, said the Cape Bar. But there is nothing that ‘prohibits you, in your capacity as the leader of the judiciary of SA, from asking (the three) to take voluntary leave’. To this he responded: ‘It bears repetition that legality forbids that we purport to exercise power that has not been conferred on us … We will do what we consider to be in the best interests of the judiciary and the general public’. An uncharitable reading of this response, says Rabkin, is that Mogoeng is hiding behind his lack of legal power to do nothing. Yet there is nothing to stop him from seeking to mediate. A more positive reading is that Mogoeng is stepping in, but trying to do so privately. What we know for certain is that he does not want to hear anything further from the Western Cape advocates: ‘And this marks the end of our engagement with you on this matter,’ he said in his second and apparently final letter to the Bar.