Protecting the Dignity of the Courts (cont.)
When then Justice Minister Mabandla returned from an overseas trip in June 2008, she found a request for "special leave" awaiting her. Cape Judge President John Hlophe submitted it in the wake of the most recent spat in which he is embroiled. Hlophe is no stranger to controversy. By the narrowest of majorities he earlier avoided an impeachment hearing after his integrity was impugned in a series of complaints pressed against him. Allegations of conflict of interest, a corrupt and improper relationship with a financial institution, tax evasion and racism about which he lied featured in the complaints to which the majority of the Judicial Service Commission (the body tasked with disciplining judges) turned a half blind eye, instead merely reprimanding Hlophe for improper conduct and comments he made about fellow Judge Wilf Thring when the latter’s appointment in a case came under inappropriate discussion in the even more inappropriate presence of a litigant in the case.
The reason for the request for “special leave” submitted by Hlophe was that he had again run into trouble, this time for interfering with two junior members of the Constitutional Court, who, so they alleged, he tried to persuade to find for Jacob Zuma, in a series of appeals then pending before the Constitutional Court. In subsequent novel proceedings, in which an appeal is pending, it appears to be common cause that Hlophe did indeed visit his Braamfontein based colleagues and also made his pro-Zuma views known to them; this despite his initial denial of any involvement.
Mabandla, mindful of her duty to take measures to protect the dignity of the Courts, granted the unusual request made by Hlophe for "special leave" until the complaint by the Constitutional Court judges is resolved. That complaint is far from resolved. It has been kept at bay by a preliminary application by Hlophe against the complainants which, as already noted, has become bogged down in the appeal procedures of the Courts and is unlikely to be heard in Bloemfontein before May.
How perplexing then that Hlophe should unexpectedly present himself at his Chambers in the Cape High Court and announce, according to unconfirmed reports, that he is tired of long leave, desirous of making himself available for the soon to be vacated position of Chief Justice, and that he has cut his long leave short to return to work. This is irresponsibly destructive of the very institution Hlophe heads: accountability and respect for the judiciary dictate that he stand down until the complaint is finalized – he is accused of what is in effect contempt of court, a serious crime. Whether Hlophe is acting of his own accord or with the concurrence of the Minister of Justice – who has inherited a situation in which Hlophe is on “special leave” until the complaint against him is resolved – is not clear. One would hope that the Minister has not been so ill-advised as to agree to this strange maneuver. After all, the President has the power to suspend a Judge who is the subject of an impeachment hearing, the exact position in which Hlophe finds himself. It was when Hlophe was faced with calls from various quarters that he be suspended pending the hearing of the complaint against him that he put in his application for "special leave" pending the resolution of the complaints. Those calls should now be renewed by inter alia, the Cape Bar Council, which very properly took up the attitude that Hlophe should stand down until the complaint is resolved, in the interests of the impartiality and independence of the Courts. The President will have to take advice from the Judicial Service Commission as to whether it is appropriate to suspend a judge who has voluntarily taken “special leave” for no other reason than that there is a serious complaint of gross misconduct pending against him. The question that obviously arises is: "What has changed to allow Hlophe to cut short his 'special leave'?" The answer that suggests itself is: "Nothing". If Hlophe is not prepared to resume his "special leave" he may well find himself suspended in terms of section 177(3) of the Constitution.
There are cynics who suggest that the reason for the sudden return to work is not a new found desire to dispense justice after all the months away, but rather a tactic to bring pressure to bear on the Minister to improve the settlement amount for which Hlophe will resign from office. It is known that he has demanded "damages" of R10 million from the complainants for the impairment of his dignity. This claim, actually worth no more than R50,000 (if valid) according to the expert opinion of Dario Milo, a leading attorney who specializes in this field, was seen by some at the time it was made as an opening bid in the "resign at the right price" dimension of the matter. Hlophe does become entitled to about R2 million as a long service gratuity at the beginning of next year, if he is still a Judge by then. At the present pace of the complaint, it is likely that he will be, give or take an appeal or two. So the unscheduled return to work may be nothing more than a risky stratagem to move the settlement negotiations (if any) taking place behind the scenes in a direction that favours Hlophe’s resignation at a settlement figure which is more to his liking.
Legal purists, on the other hand, feel that settling with Hlophe should not be countenanced and that the allegations and counter-allegations of serious wrongdoing should be fully ventilated in a public hearing and adjudicated to the point of finding whether or not what Hlophe admits doing plus whatever is proved against him amounts to gross misconduct. Thereafter the National Assembly is seized of the matter, assuming that gross misconduct is found. Only if two thirds of the members of that house so resolve is the President obliged to remove Hlophe from office. Only the optimists in the Hlophe camp suggest that there is any prospect of his persuading the adjudicators that his accusers, all the Judges of the Constitutional Court at the time, have acted in a manner that can be characterized as gross misconduct.
Not only is the dignity of the Cape High Court undermined by Hlophe’s premature return to work. Its effectiveness is also at stake. Reportedly, an increasing number of Judges decline to have anything to do with Hlophe while the allegations against him remain unresolved, notwithstanding the presumption of his innocence. If Hlophe is so bold as to sit in any cases this term he may expect to face requests for his recusal from litigants who understandably hesitate to have him adjudicate their matters. Between them the Judicial Service Commission, the Presidency and the Minister of Justice are going to have to do their constitutional duty to protect the dignity and effectiveness of the Courts. Spare a thought for the Judges of the Cape Bench; their dismay at Hlophe’s sudden return is palpable. Some have been waiting for years for a public apology from Hlophe, after his baseless allegations of racism against them were found by the Heads of Courts to have been refuted.
Paul Hoffman SC
27 January, 2009