South Africa’s running sore that will not heal: the case of Justice John Hlophe

Justice delayed is justice denied, the old saying goes. Well John Hlophe, Western Cape Judge President, certainly deserves his day in court. The charge against him could hardly be more serious: trying to pervert the course of justice by influencing Constitutional Court judges, apparently on behalf of Jacob Zuma. Yet, six long years after Constitutional Court judges laid charges against him, the complaint is still unresolved.

Martin

Constitutional Court judges listen to arguments in November 2011 in one of the many instalments of the saga involving complaints made against Judge John Hlophe by justices Bess Nkabinde and Chris Jafta. The long- running case has put on hold other cases of judicial misconduct and goes to the heart of the ability to hold judges accountable.

WHEN a complaint of gross misconduct was first made against Western Cape Judge President John Hlophe, it was a bombshell revelation requiring urgent resolution to maintain the integrity and independence of the judiciary. It has since faded to an almost farcical, never-ending saga.

Since the complaint was laid in May 2008, there have been six court cases over it — two brought by Judge Hlophe, two by the media, one by Freedom Under Law and one by Western Cape Premier Helen Zille.

Now there’s another. Will it never end? Is it even worth following anymore?

With all the ins and outs, it is easy to forget that according to the justices of the Constitutional Court, Judge Hlophe did the unthinkable: unsolicited, he approached two of the court’s members, seeking to influence the outcome of cases widely viewed as likely to define SA’s political future.

When the Constitutional Court reserved judgment in the four Zuma/Thint cases, many believed the outcome of those would determine whether Jacob Zuma would be able to go on to become president of SA. The cases were connected to pending corruption charges against him.

In the end, the judgments were not determinative, but no one knew that then.

Moreover, the clear implication of Justice Bess Nkabinde’s evidence was not only that Judge Hlophe sought to procure a certain outcome in the judgments, but that he had been sent there — by whom is not entirely clear.

Judge Hlophe has consistently denied the allegation, saying his statements were misconstrued: he was just interested in the case, like everyone else, and passionate about the issue of legal privilege, on which much depended. No one sent him; he did not try to influence anything, is his version.

The versions cannot be reconciled, much as the Judicial Service Commission (JSC) tried, and the uncomfortable conclusion is that either one or two senior judges have lied under oath.

If Justice Nkabinde’s version is to be believed, we may have a brazen attempt to undermine judicial independence by whoever sent Judge Hlophe to procure the outcome he sought.

If this is true, even if it is never established who this was, the closer the public comes to finding out, the less likely it is to happen again.

But most importantly: speedy, fair and transparent resolution of complaints against judges is a fundamental component of judicial accountability (and therefore judicial independence, the other side of the same coin) in our constitutional scheme.

It was unfortunate that such a divisive complaint was the first to test the systems and processes in place to hold errant judges accountable.

The JSC took a political decision in how it handled the Hlophe dispute, which did not stand up to the rigours of law when it was tested on review in court.

Those looking on aghast now may be wondering whether it might not have been better to let sleeping dogs lie instead of forcing the JSC to begin afresh. Many thought so at the time.

But that is water under the bridge. The salient point remains that six years on, the systems meant to resolve these issues are yet to bring us satisfaction. If ever there was a reason to stay interested in this story, it is that.