Judging history: The great, grey, grievous John Hlophe saga

When, in 2008, all the justices of the Constitutional Court complained to the Judicial Service Commission (JSC) that Western Cape judge president John Hlophe had sought to influence the outcome of a judgment then pending before them,  the complaint stunned the nation.

It was not just any judgment. It was connected to corruption charges against Jacob Zuma, at the time president of the ANC.

Back then, it was widely believed that the judgment was crucial in Zuma’s political future.

For a judge to get involved in politics in the way Hlophe was alleged to have done — raising the pending judgment in unsolicited approaches to justices Bess Nakbinde and Chris Jafta — was unthinkable.

Even more unthinkable, then, it that it took almost 15 years before the complaint approached finality.

But it was only last month that President Cyril Ramaphosa suspended Hlophe, pending a decision by parliament on his impeachment.

There may yet be more litigation in what seems to be a never-ending saga. 

But the significance of this moment should not be understated. Judicial accountability would have suffered a fatal blow if a judge president had been allowed to continue in his post  after the JSC had referred him for possible impeachment.

If there is to be more litigation, Hlophe will be conducting his from the outside, no longer at the helm of the Western Cape division.

Yet the question remains why it all took so long.

Partly this is due to the cumbersome accountability mechanisms under the JSC Act. 

Any complaint about judicial misconduct takes an unduly long time to go through the process;  the nonprofit Freedom Under Law (FUL) calls the system “broken”.

But the complaint against Hlophe was particularly contentious. 

Responding, Hlophe accused former chief justice Pius Langa and deputy chief justice Dikgang Moseneke of wanting to “get rid of me at all costs, whatever it took, even if it meant … bringing the whole judicial edifice crashing down in disgrace”.

Hlophe said it appeared “there may well have been a political motive on the part of the chief justice and his deputy”, adding that they had jumped on the bandwagon of those who were trying to get him impeached.

This was “the kind of bandwagonism that has been in vogue” since his 2004 report into racism in the judiciary.

In an interview with Business Day in 2009, Hlophe said: “Before 2004, I was a darling of the legal profession. I was a superstar. There were people in the legal profession, including some retired judges, who were saying openly that John is a star, he is a future chief justice of this country … Until 2004. Until the racism report.”

In the saga that is Hlophe’s disciplinary process, that 2004 report is something he and his supporters repeatedly go back to.

The idea that he was destined for chief justice but was persecuted for political reasons is also an oft-repeated mantra.

In the same interview, when Hlophe was asked what Langa and Moseneke’s political motives could have been, he said it could be judicial politics or national politics: “I mean, the complaint against me is significant in the sense that it arises out of allegations … that basically I was trying to help Mr Zuma to get rid of his criminal cases in order for him to be where he is today.”

The panel said it felt dutybound to defend 'the integrity of the judges of the Constitutional Court, in particular chief justice Pius Langa, deputy chief justice Dikgang Moseneke, justice Nkabinde and justice Jafta, whose integrity has been called into question by judge president Hlophe’s unfounded and scurrilous attacks'

Lawyers who the Sunday Times spoke to agreed that Hlophe had been considered a rising star in the judiciary; one said he had been the protégé of some of the senior white judges in the Cape division.

Having moved from academia to the bench in 1995 at the age of 36, five years later he was promoted to judge president. 

But critics said there had been disquiet about Hlophe before the racism report and that the report was a self-serving response to these concerns.

The report, an anecdotal account by Hlophe of incidents he had experienced, was followed up by an investigation by the heads of court, which reportedly said his allegations “against individual judges and some of the members of the legal profession have, in general, been refuted by the persons concerned”.

Still, there was no denying that racism was present in the judiciary and rife in the legal profession. Hlophe’s report forced the issue, long bubbling under the surface, to the top of the agenda.

Perhaps this is why Hlophe has been such a polarising figure in the legal community and continues to find support from organisations like as the Black Lawyers Association, even while he denigrated highly respected leaders of the judiciary such as Langa and Moseneke, whose antiracism track record was so much stronger than his own.

In 2021, just before a judicial conduct tribunal found him guilty of gross misconduct, he gave a number of interviews — until then, a rare occurrence.

In them, he again raised his racism report, bemoaned the fact that South Africa still has laws dating from before 1994, and blamed the DA for his troubles.

He had been cleared of the misconduct charge by the JSC the year after it was lodged, he said. But the complaint was “kept alive” by the “interference” of the DA, he told Newzroom Afrika, referring to the court challenge by Western Cape premier Helen Zille that led in 2011 to the Supreme Court of Appeal (SCA) setting aside the initial JSC decision.

Ten years later, in April 2021,  the tribunal decided unanimously that Hlophe had sought to influence Nkabinde and Jafta to breach their oath of office. In August that year, a majority of JSC members voted to refer Hlophe for possible impeachment.

One of the strongest findings of the tribunal was a vindication of Langa and Moseneke. The panel said it felt duty-bound to defend “the integrity of the judges of the Constitutional Court, in particular chief justice Pius Langa, deputy chief justice Dikgang Moseneke, justice Nkabinde and justice Jafta, whose integrity has been called into question by judge president Hlophe’s unfounded and scurrilous attacks”.

The saga has dragged on mostly because of litigation.

Apart from the case that Zille brought, FUL also approached the SCA — successfully — to have the JSC’s 2009 decision in favour of Hlophe set aside. In the FUL case, the appeal court said the JSC’s failure to hold a full inquiry — which would have tested the conflicting versions of Hlophe vs Nkabinde and Jafta through cross-examination —  was irrational.

Once the 2009 decision was set aside, the position in law was that the JSC was once again sitting with a complaint against Hlophe.

A tribunal was supposed to have begun work in 2013. But it was held up by a legal challenge — not from Hlophe but by Nkabinde and Jafta, who fought their case all the way to their own court, the Constitutional Court.

Bizarrely, they even applied for rescission when the Constitutional Court declined to hear them.

The tribunal was meant to get under way again in 2018. But Hlophe sought the recusal of one member of the panel. Then, his lawyers were fighting about getting paid.

Meanwhile, all along, Hlophe has been at the helm of the Western Cape High Court. After an initial spell of special leave, in February 2009 he simply returned to work.

It was only just over four months ago that the JSC recommended suspension for Hlophe.

This meant that even as the 2008 complaint hung over him unresolved, the judge president was presiding over cases, assigning judges to hear cases and even sometimes sitting on the JSC to decide who should be appointed as a judge in his division.

For a while this less-than-ideal  state of affairs prevailed with no outward ruptures;  Hlophe even boasted in 2021 that “everyone knows” the Western Cape was the best run division in the country.

But in January 2020 a new scandal had erupted: a row between Hlophe and his deputy, Patricia Goliath. The sordid dispute involved Hlophe’s wife, Gayaat Salie-Hlophe, who is also a judge in the division. 

Other judges of the court also became embroiled. Goliath made a number of accusations against Hlophe, including that he had assaulted a colleague, judge Mushtak Parker, in his chambers.

It later emerged that Parker had said the assault followed an accusation by  Hlophe that he had tried to flirt with Salie-Hlophe. 

Goliath also complained about the way Hlophe ran the high court, accusing him of sidelining her and delegating his functions to another judge, instead of her, when he was away at circuit court.

Goliath said Hlophe involved his wife in the court’s administration — making the other judges uneasy. When she raised her concerns with him, he reacted aggressively, calling her a “piece of shit” and “rubbish”, Goliath said.

Hlophe said Parker would deny the assault. He denied swearing at Goliath and said their relationship of trust had broken down because she had meddled in his domestic affairs.

He accused her of incompetence, racism and lying, saying she had called him an ugly old man, that she had referred to Africans as “k*****tjies” and that she had told Salie-Hlophe to drop his black surname

He accused her of incompetence and of racism, saying she had called him an ugly old man, that she had referred to Africans as “k*****tjies” and that she had told Salie-Hlophe to drop his black surname.

When Hlophe denied swearing at her, Goliath produced a recording of the conversation.

Hlophe then said her secret recording of their conversations was undermining him.

Matters got even messier when some of the judges if the division refused to share a bench with Parker; 10 judges laid their own complaint against him.

They said he had told them he had been assaulted, yet was now apparently denying it. For this, a judicial conduct committee (JCC) appointed by the JSC decided that Parker should face his own tribunal and he was suspended.

“If the allegations of racism against the deputy judge president [Goliath] were established, including the allegation that the DJP referred to some judges as ‘k*****tjies’ or that the judge president  and Salie-Hlophe lied in imputing the allegations to the DJP, gross misconduct could be proved either way,” said the JCC appeals committee.

The JSC is due to meet in March to decide whether it agrees that a tribunal should be established along the lines recommended by the appeals committee.

It must also decide whether to recommend suspension for Goliath. If it does, and Ramaphosa suspends her, the division would be leaderless and acting leaders would have to be appointed.

On the 2008 complaint, a tribunal has already made a finding and the JSC has made its referral, so an impeachment process in parliament should not, in theory,  be a lengthy process.

But it is new terrain legally. And if the past is anything to go by, more litigation can be expected. Hlophe has already challenged the JSC’s decision to find him guilty of gross misconduct.

The high court rejected his challenge but granted leave to appeal to the SCA. In a separate case, he has challenged the JSC’s decision to recommend suspension.