South Africa’s own judgement day
“Will he or won’t he,” was the question most legal experts were asking as the Judicial Service Commission (JSC) deliberated over 23 candidates for a number of soon to be vacant Constitutional Court seats. They were, of course, wondering whether controvers
Why was Hlophe’s name left off the list? Many believe that his integrity was damaged by the JSC’s failure to deal appropriately with recent allegations against him. Former Constitutional Court judge Johan Kriegler told Sapa that “the charges against Judge Hlophe are probably as serious as you can level against a judicial officer – [being] trying to subvert the integrity of the highest court in the land!” Other notable omissions from the short-list were Dennis Davis, the Judge President of the Competition Appeal Court and Eberhard Bertelsmann, the North Gauteng High Court Judge. The seven names forwarded by the JSC to Zuma include: Johan Froneman, Chris Jafta, Sisi Khampepe, Mandisa Maya, Moegeng Moegeng, Leona Theron and Raymond Zondo.
Too many irregularities
Hlophe has been in the media spotlight since 2005. So many articles have been written about his wrangles with the JSC and various legal professionals that the website Legalbrief.co.za has dedicated a full page to just one of Hlophe’s tussles. His initial battle with the JSC is covered chronologically on the website in more than 50 articles. One example is an open letter to the Sunday Times (penned in November 2007) by Paul Hoffman, Director of the Centre for Constitutional Rights. He criticizes the paper for “startling omissions” in a profile piece on Hlophe. He says the paper neatly side-stepped racism allegations levelled at Hlophe by a senior advocate. But like most allegations levelled at Hlophe, these never stuck.
Where did Hlophe’s problems start? To find out we have to go back to March 2005, when Cape High Court Judge Siraj Desai questioned Hlophe’s decisions to grant a Cape Town financial services company (Oasis) permission to sue him for defamation. Subsequent to this it emerged Hlophe had been receiving a R10 000 per month retainer from Oasis. It took 30-months for the JSC to resolve the issue. And then, as Legalbrief.co.za reports, “to the surprise of many right-thinking people – [they decided] that Hlophe would not only avoid impeachment (which the JSC had been asked to consider) but would retain his position on the Cape Bench.” The JSC inquiry into this allegation was finally canned in October 2007.
Hlophe found the spotlight again during the lengthy legal battle between the National Prosecuting Authority (NPA) and then president of the African National Congress, Zuma. A charge was laid against Hlophe by a group of 11 Constitutional Court judges in which it was alleged he had made inappropriate approaches to certain judges with regards a judgment on Zuma. These events played out before Zuma was elected President. This matter has dominated the country’s legal landscape since May 2008. And on 28 August 2009, a majority decision of the JSC concluded that “formal hearings are, in respect of the complaint and counter-complaint, not warranted!”
Is there another plan for Zuma’s man?
This ruling prompted members of Freedom Under Law (FUL) to call for a review of the matter and to accuse the JSC of failing in its mandate. There were also suggestions that the JSC’s soft approach through previous Hlophe-related hearings had sabotaged any chance for appropriate action at the latest disciplinary hearing.
It’s difficult for the layman to interpret political manoeuvrings. When we first heard that Hlophe would not make the short-list for the Constitutional Court position we breathed a sigh of relief. But then we applied our mind to the situation. There is an even more influential court appointment that has to be made in coming months. An article in Noseweek 119, titled “Behind the Johannesburg bar brawl” might be right on the money. They report that “despite Zuma’s recent nomination of Justice Sandile Ngcobo as the next Chief Justice, it is widely believed that Hlophe is the President’s favourite for the job.” The magazine suggests that Ngcobo is merely a stand-in until the dust around Hlophe settles.
And Ngcobo’s ‘appointment’ is not without controversy either. The official opposition was incensed with the manner in which Ngcobo’s potential appointment was announced. Official correspondence sent to the parties read: “The president of the Republic of South Africa, Mr JD Zuma intends to appoint Mr Justice Sandile Ngcobo as Chief Justice of SA, please find the attached letter from the President on this regard.” Leaders for the Democratic Alliance, Independent Democrats, Congress of the People and Inkatha Freedom Party believe the President erred in his Constitutional obligation in this matter. They say he should have consulted “the leaders of all political parties represented in the National Assembly, as well as the JSC before making the appointment!”
Editor’s thoughts: As President Jacob Zuma settles down in office there are many legal commentators raising concerns about the independence of the Judiciary. Their concerns are borne out in media reports of ‘allies’ and ‘correctly aligned’ individuals being promoted to judicial decision-making structures. Some even suggest Hlophe escaped JSC sanction recently because of Zuma’s appointments to the JSC. Do you think Western Cape Chief Justice John Hlophe will make a return as South Africa’s next Chief Justice? Add your comment below, or send it to [email protected]
