Last month the Judicial Service Commission sent a recommendation to President Cyril Ramaphosa that Western Cape judge president John Hlophe be suspended. A slam dunk, you’d think. Not as far as this president is concerned. He is — as Mac Maharaj would have put it — still applying his mind. Urgency doesn’t seem to apply or matter to him.
But it is about time this matter is put to bed, and quickly. The Hlophe saga has been a running sore for the judiciary. It has not only left an acrid stench on the bench, the controversy has corroded its credibility.
In the eyes of the public, the judiciary itself is on trial not only because one of its own — a judge who wields enormous influence — is accused of gross misconduct, but because it has taken the judiciary more than a decade to resolve the matter. It also suggests that their lordships regard themselves as a superior species; they live by a different set of rules than those Joe Public has to contend with.
It was 14 years ago that Hlophe, on a fishing expedition, invited himself to the offices of justices Chris Jafta and Bess Nkabinde at the Constitutional Court to politely solicit their favour in a matter involving Jacob Zuma, who was soon to scale the summit of political power.
Whether Hlophe’s moonlighting was off his own bat or at Zuma’s behest is not clear. But the matter has become a hot potato and a blot on the institution of justice. It has outlived two chief justices, Pius Langa and Mogoeng Mogoeng. In the meantime, Zuma has served two terms as president, has been to jail and is still facing a slew of charges.
The judiciary, guardians of our liberties, has not covered itself in glory. It has utterly failed to live up to its billing. How can it prudently mediate our affairs when it fails to hold to account one of its own? Those who sit in judgment of society should at the very least be of unimpeachable character.
The ball is now in Ramaphosa’s court. Having been found guilty of gross misconduct by the judicial conduct tribunal in April, the JSC wants Hlophe suspended pending impeachment proceedings in parliament.
That’s a fair and reasonable decision. It’s customary, even obligatory, for any senior official in the private or public sector who’s under a cloud to stand down or be suspended pending an investigation. The view is he could either tamper with the evidence or intimidate witnesses.
Hlophe should have been suspended 14 years ago when these allegations first arose. In any other country, he would have resigned, or been forced to do so. In any case, you and I found guilty of gross misconduct wouldn’t last a day in our jobs. We’d be out on our ear in no time.
The judiciary, guardians of our liberties, has not covered itself in glory. It has utterly failed to live up to its billing. How can it prudently mediate our affairs when it fails to hold to account one of its own?
But there are other charges and allegations against Hlophe: that he tried to influence judicial appointments; he wanted pro-Zuma judges to sit on the Russian nuclear case; received payments from a private company which he failed to declare with Sars; allegations of sexual misconduct; assaulting a fellow judge and so on. Not a very nice man, it would seem. Such a person should certainly not be sitting in judgment of others. He should not be allowed to stay a day longer in his position.
But getting Ramaphosa to make a decision is like getting blood from a stone. And he dithers even when a decision has already been made for him and all he has to do is rubber stamp it. He is, for instance, proficient in appointing task teams and inquiries, yet always seems reluctant to act on their recommendations. The reports of the Public Investment Corporation and Mufamadi are gathering dust, among others. He’s promised to act on the humongous Zondo report, a political minefield, but don’t bet on it. At times, the dithering comes back to bite him. He sat on the report recommending Busisiwe Mkhwebane’s suspension until the outrage over the millions stashed on his Phala Phala farm muddied the waters. And by the time he took the decision to suspend her, it seemed as though he was doing it to shield himself from an investigation she initiated with some alacrity.
The delay to act on Hlophe is already giving encouragement to the usual suspects, organisations and individuals who broadly fall within the orbit of what one can loosely describe as the Zuma corruption network. These people always look after each other, irrespective of the nature of the evidence before them. Even some lawyers, apparently morally upright people who must obviously aspire to be judges one day, have come to his defence. One incoherent nincompoop was on TV the other day arguing that suspending Hlophe would be against the law or some such. Maybe he’s familiarised himself with “the law” while retiring nicely under a rock somewhere.
Interestingly, the Hlophe defence forces aren’t arguing the merits of the case; they’re arguing in mitigation of sentence, so to speak — pleading, for instance, that he comes from a poor background, is a brilliant jurist and has been a champion of transformation. Frankly, that’s besides the point. Even Mother Teresa would have had to be removed if she were similarly charged. And if a flawed character like Hlophe is the face of transformation, what kind of society are we aspiring to create?
Some people just don’t seem to want a prosperous country. They celebrate and cheer the bad eggs and pull down those who want to do right by the country. Zuma has utterly destroyed the moral compass of this country.
Ramaphosa did well to ignore the baying mob when he appointed Raymond Zondo as chief justice. Zondo deserves to start his tenure on a clean slate. But more importantly, this country, probably more than at any time in its history, deserves a judiciary that is beyond reproach. Hlophe must go.
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