Crunch time for Hlophe
Cape Town - The ongoing controversy around whether Cape Judge President John Hlophe attempted to influence Constitutional Court judges in favour of President Jacob Zuma in 2008 will finally be officially investigated, by a Judicial Conduct Tribunal, which carries with it a threat of impeachment.
This was confirmed on Friday night by Judge Hlophe’s attorney, Barnabas Xulu, who said Chief Justice Mogoeng Mogoeng would formally appoint the tribunal – the first in SA involving a judge president – to investigate the allegations. Zuma was not SA’s president at the time.
According to Xulu, Judge Hlophe received a letter from the Judicial Service Commission (JSC) late yesterday informing him that the chief justice was to set up the tribunal. A date had yet to be set, but the letter indicated it would be done speedily.
The JSC has, however, not recommended that Judge Hlophe be suspended from his post, pending the tribunal, Xulu said.
It will mark the first time in SA that a judge president has faced such a tribunal. However, previously Judge Nkola Motata, accusd of making a racist remark to the owner of the Joburg house where his car crashed in 2007, faced such an inquiry.
Xulu explained that the tribunal worked like a commission of inquiry or court case: evidence was led and a decision made, based on the evidence presented.
He effectively welcomed the decision, saying that the establishment of a formal body to test the allegations was “going to be the easiest way of clearing my client”, and silence critics with their “own agendas”.
“That is the forum that needs to deal with it,” he added.
Xulu also said he hoped the process would be speedy and not drag on, saying that “justice delayed is justice denied”.
The allegations against Judge Hlophe relate to a 2008 complaint that he attempted to influence Constitutional Court judges in favour of Zuma. But, in August 2009, the JSC found there was insufficient evidence before it to justify gross misconduct on Judge Hlophe’s part.
Months later, NGO Freedom Under Law went to the North Gauteng High Court to challenge the JSC’s decision and later Western Cape Premier Helen Zille followed suit in the Western Cape High Court.
The Western Cape High Court set aside the JSC’s decision in 2010 and, while Freedom Under Law lost in North Gauteng, it appealed to the Supreme Court of Appeal (SCA), which eventually set aside the JSC’s decision.
The SCA also later upheld the Western Cape High Court’s ruling.
Earlier this year the Constitutional Court refused to grant Judge Hlophe leave to appeal, and in April the JSC considered the matter afresh, appointing a judicial conduct committee to investigate.
Last month the committee announced that it recommended that the JSC establish a Judicial Conduct Tribunal to investigate, and that if the complaint was valid, it would “indicate gross misconduct which may lead to impeachment”.
However, the decision on whether to establish such a tribunal rested with the JSC, which met late on Wednesday behind closed doors to decide on the matter.
By late yesterday afternoon, its decision that the Chief Justice appoint a tribunal was formally sent to Judge Hlophe.
Judge Hlophe is no stranger to controversy.
In 2004 he wrote a report alleging racism at the Cape Bar.
The following year he was at the receiving end of racism allegations, after a city attorney claimed he had made racist remarks towards him.
In 2006 it was also reported that Judge Hlophe gave the Oasis Asset Management Group permission to sue Justice Siraj Desai at a time he was moonlighting for the group.
The JSC considered the complaints and criticised his behaviour, but found there was insufficient evidence to proceed with a public inquiry into the allegations.