John Hlophe. Picture: TREVOR SAMSON
John Hlophe. Picture: TREVOR SAMSON

Chief Justice Mogoeng Mogoeng says the decade-old misconduct complaint against Western Cape judge president John Hlophe “threatens to be one of those that are going to take very long”, due in part to Hlophe’s demand for greater state funding of his defence.

Hlophe’s legal team has meanwhile disclosed that he is planning a new challenge to his misconduct tribunal, whose ultimate findings could result in his impeachment.

He is accused of trying to influence two Constitutional Court justices to rule in favour of then ANC president Jacob Zuma, in a 2008 case related to the Scorpions’ search and seizure raids on him and his lawyers. He has denied all wrongdoing.

The Hlophe saga constitutes the longest running judicial scandal in democratic history.

While Mogoeng has stressed the need for greater judicial accountability, the Judicial Service Commission’s (JSC's) failure to adequately resolve the Hlophe matter arguably undercuts that message —and leaves the judiciary open to criticism that it is reluctant to address alleged malfeasance in its ranks.

In June, one of the judges sitting on the disciplinary tribunal panel that will decide Hlophe’s fate — judge Cagney Musi —recused himself, following accusations from Hlophe that he had made disparaging comments about him and would therefore not have “an open mind” about the complaint against him.

Musi denied Hlophe’s allegations.

The JSC's secretary, Sello Chiloane, told Business Day last week that, following Musi’s recusal, Mogoeng had appointed judge Tati Makgoka to take his place.

Chiloane was unable to say when the misconduct hearing, which has already been the subject of multiple court cases, would resume. Hlophe’s lawyer, Barnabas Xulu, has said that when the misconduct tribunal resumes, Hlophe will ask that it be completely reconstituted.

Xulu says that the other judges on the tribunal, headed by judge Joop Labuschagne, must have been “contaminated” by their interactions with Musi, and should therefore also recuse themselves.

He also confirmed that Hlophe’s legal team had appealed directly to the chief justice for help in securing money for legal fees from the state.

“We have made repeated requests for him to intervene, but he has provided a well-reasoned position for why he cannot do so.”

Speaking to the media on Friday, Mogoeng said he had been made aware of Hlophe’s issues with legal funding by his lawyers — and suggested this fight could cause significant delays in Hlophe’s misconduct hearing.

Mogoeng said it was his understanding, based on correspondence received from Hlophe’s lawyers, that he “did not receive the help they were expecting from the minister of justice … [and] the state attorney in particular, in relation to the financial resources they needed to fund the legal representative of choice of the judge president”. 

“You would recall that there is a QC [Queen's Counsel] from London, I think, that he’s using [advocate Courtney Griffiths]. He [Hlophe] prefers that … for reasons that I need not go into, and it looks like budgetary constraints might be advanced as the reason for not being able to proceed with matter, even when the tribunal matters resumes.”

Mogoeng said it was difficult for him, as the chief justice, to intervene in the matter.