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

Much has been written about the optics of a judge who should be on precautionary suspension (but isn’t because he ended his suspension unilaterally and illegally years ago) electing to sit in a politically charged criminal trial. One in which the accused is a henchman of the person that judge stands accused of trying to help, in a manner that constitutes an attempt by him to defeat the ends of justice.

All at a time when a ruling on his attempt to persuade the Constitutional Court to be helpful to Jacob Zuma back in 2008 is still pending.

Western Cape judge president John Hlophe is also wrong in his approach to the application for a discharge at the end of the state’s case, made by the defence in the attempted bribery trial of Bongani Bongo, who was briefly a national cabinet minister in the Zuma administration. It is bad enough that the defence version has been accepted by Hlophe without a word of evidence to substantiate it, and that prematurely inappropriate credibility findings have been made.

The hair-splitting on the supposed difference between “asked to name his price” and “offered a bribe” is also excruciatingly poor jurisprudence.

However, the failure to mention director of public prosecutions, Transvaal v Mtshweni, the leading Supreme Court of Appeal case on the topic of sufficiency of evidence at discharge stage, is a dereliction of judicial duty of a kind that brings the impartiality and correctness of the decision reached into question.

It also opens the way for a successful appeal by the National Prosecuting Authority (NPA) on a point of law that arises due to the perverse lack of appreciation of relevant evidence on the part of Hlophe, and his failure to grasp that “gratification” does not have to be in a specific amount to constitute an offence.

The NPA should not hesitate to appeal; its image is in tatters and its ranks infested with what NPA investigating directorate head Hermione Cronje calls “saboteurs”. A failure to appeal will be perceived as a further symptom of weakness in the NPA, which will take years to recover from the ravages of its hollowing out in the Zuma years.

That Hlophe has been allowed to roll around on the upper-deck of the judiciary like a loose cannon for years is the fault of the Judicial Service Commission (JSC). This august body has a constitutional mandate to determine whether any judge is guilty of gross misconduct. Laws and procedures for doing so have been carefully formulated. They are supposed to be applied “diligently and without delay”.

Hlophe has been accused of gross misconduct on multiple occasions. In addition to a decision on the complaint against him by all the then justices of the Constitutional Court, there are further proceedings pending concerning abuse of his deputy and an assault on a junior member of his bench.

Section 177(3) of the constitution is instructive: “The president, on the advice of [the JSC], may suspend a judge who is the subject of a [disciplinary] procedure.” Hlophe is the subject of at least one such procedure. It is accordingly mystifying that the JSC should go on record saying it has no say in the matter. 

While Hlophe may have been “royal game” during the Zuma era, that era is fortunately now history. The JSC is in dereliction of its duty to advise the president to suspend Hlophe and should urgently address the situation before the loose cannon does any more damage to the fabric of the judiciary.

Section 165(4) of the constitution states that it is the duty of all organs of state to “assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”.

At a time when the judiciary is taking flak from various political quarters it is appropriate to ensure that the functioning of the JSC is above criticism. Unsubstantiated allegations of corruption gain credence when it tolerates the presence on the bench of a person with the track record and predicament of Hlophe.

When he appoints himself to sit in judgment of Zuma’s cronies and involves himself in other shenanigans in which his personal attorney is a key figure, the entire judiciary is brought into disrepute. This sad state of affairs is exacerbated when his antics go unnoticed and unremarked on by the JSC. And when, on being pressed, it neatly folds its hands.

Hlophe is a keen and expert gardener. It is high time he is given time to indulge his hobby. The JSC must do its duty.

• Hoffman, SC, is a director of Accountability Now. He served as an acting judge in Cape Town at the invitation of three successive judges president, including John Hlophe.

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