Hlophe What Next?
The Supreme Court of Appeal (SCA), in two related but separate matters - both aimed at correcting the lackadaisical attitude of the Judicial Service Commission (JSC) toward its duty to discipline judges who stray from the paths of probity and integrity expected of them, has spoken out clearly. It has decided by a margin of 10 Judges of Appeal to nil in favour of those questioning the way in which the JSC tackled the dispute between all of the Justices of the Constitutional Court who graced its bench back in 2008, and Cape Judge President John Hlophe. These findings ought to be both sobering and corrective.It is therefore more than worrisome that the Minister of Justice, Jeff Radebe, who is ex officio a member of the JSC, speaking at a function in Durban on 31 March 2011 shortly after the two seminal judgments were delivered by the second highest court in the land, had the following to say:
"Each time the issue of the Cape Judge President John Hlophe is resuscitated in Courts, there is a numbing feeling that there may be forces that are working against the imperatives of transformation".
The innuendo lurking in this ill-considered remark is that those who were dissatisfied with the improper and procedurally unsound white-washing administered to Hlophe by the JSC, then newly reconstituted by President Zuma, were acting against the imperatives of transformation. This is prima facie defamatory of all 10 Judges of Appeal, Freedom under Law, the Premier of the Western Cape, who were the litigants, and Professor Kader Asmal, who entered the fray as a friend of the court. A comprehensive spectrum is represented here - it is manifestly not Hlophe's blackness that exercises them, it is his untested fitness for judicial office in the face of dire charges of criminality on his part, pressed by the full bench of our highest court. All judges, and the premier, solemnly swear to uphold the Constitution on taking office.
The honourable minister is respectfully reminded that our transformative constitutional order requires that there be accountability, openness and responsiveness in governance. These are foundational values of the supreme law of the land. Successful transformation will never be attained if they are not punctiliously upheld by the JSC in all that it does, both in recommending judges for appointment and in disciplining, where necessary, those against whom complaints are laid. This is a fortiori so when the complaints happen to be laid by all of the Justices of the Constitutional Court. The SCA trenchantly expressed its misgivings about the way in which the JSC conducted itself in order to attempt to avoid the unavoidable - the convening of an adversarial hearing with oral evidence and cross-examination of witnesses to get to the truth behind the many disputes of fact raised as between Hlophe and the two Justices he visited on Constitution Hill early in 2008 to talk about making a finding in favour of Jacob Zuma, then a presidential hopeful, in litigation pending before them.
As a constitutionally created body, the JSC is bound to uphold the foundational values outlined above, it failed to do so in its Hlophe debacle according to the findings of the SCA. These finding ought to be used as a yardstick by the JSC to mend its ways and could present an opportunity for it to redeem its reputation in the eyes of all who attach value to an independent, impartial, effective and honest judiciary which enjoys the confidence of the public and is of unimpeachable probity and integrity.
Instead the minister carps about "forces ... working against the imperatives of transformation". It is not an imperative of transformation that judges of questioned integrity and probity occupy leading positions in our courts. The track record of Hlophe is less than glorious. The Heads of Court dismissed his so called "Report on Racism" as having been "refuted" by those whom he accused of racism. No retraction or apology has ever been forthcoming from Hlophe. His earlier disciplinary record reveals him as a crook, liar and tax defaulter, who did not pay income tax on questionable moonlight earnings timeously. This is not the type of human resource from which to build a sustainably transformed judiciary. His alleged antics on Constitution Hill, even on his own version of them, reveal a judge who has descended into the political arena, a place not visited by proper judges who act as the Constitution requires, namely "without fear, favour or prejudice." On the version of one of the Justices he visited, he came "with a mandate" from his political masters - something completely beyond the pale for any self-respecting judge.
The main constitutional "transformational imperative" for the judiciary is that gender and race be "considered when judicial officers are appointed." This takes place in the context of the obvious need for the judiciary to reflect the racial and gender composition of the nation. This consideration can not be allowed to trump the basic requirements that our judges be appropriately qualified and fit and proper persons for the onerous duties that all judges have to assume upon taking office. Despite what the minister said in Durban about the suitable "qualifications" of some candidates whom he may regard as capable of transforming the judiciary into a better institution, the "fit and proper" criteria can not be ignored. Usually, experienced practitioners and candidates are better able to satisfy these requirements. Hlophe had virtually no relevant experience, other than a university and academic career, when he was appointed. Oliver Wendell Holmes observed that the stuff of law is not logic, but experience and, as Aldous Huxley once remarked: "Experience is not what happens to a man; it is what a man does with what happens to him." What Hlophe has done with what has happened to him has brought disgrace and dishonour to the high office he still occupies. He brazenly disregards calls for his resignation, irrespective of their sources. Attempts to dislodge him by negotiation have also failed. Nothing remains other than to proceed properly with the impeachment hearing, no matter how awkward this may be for our constitutionally sanctioned transformation project. The necessary respect for the rulings made by the SCA requires that this be done by the JSC, irrespective of how doggedly Hlophe obfuscates. The consequences of the alternative are too ghastly to contemplate. The Hlophe-induced toxicity in the judiciary will eventually ruin it: the sheer wrong-headedness of his now dismissed counterclaim against the Justices demonstrates this.
Unfortunately, it is not clear from the minister's speech whether he was referring to the transformational imperatives of the Constitution or to the inherently incompatible imperatives of the national democratic revolution. The latter were summed up by Jacob Zuma in these scary terms in January:
"We reiterate... that we place a high premium on the involvement of our cadres in all centres of power. ANC cadres have a responsibility to promote progressive traditions within the intellectual community... We also need their presence and involvement in key strategic positions in the State as well as the private sector, and will continue strategic deployments in this regard."
"All centres of power" obviously includes the judiciary; heaven forbid that there are "strategic deployments" taking place as a consequence of the activities of the JSC, which itself has a caucus of "deployed cadres". Hegemonic control of the judiciary is the death knell of the rule of law, as the Mugabe regime has demonstrated.
The JSC should take the criticisms by the SCA to heart and do its best to redeem itself by swiftly convening the hearing that is so obviously needed. The hearing has to be along the lines foreshadowed in the SCA judgments: the premier must be involved and there must be oral evidence with cross examination of witnesses. Anything less won't do, unless, miraculously, Hlophe resigns.
Paul Hoffman SC
April 2011
