Judge John Hlophe soap opera: how hasn’t he been impeached?

There are some political and legal stories in SA that seem, like soap operas, to be destined to carry on forever.

One of them is the on-again, off-again 15-year corruption prosecution of former president Jacob Zuma, who has yet to face trial for allegedly accepting bribes from his former financial adviser, Schabir Shaik, and French arms company Thales.

The Zuma soap opera gained popularity in the early 2000s, and gripped the nation after he ascended to — and then descended from — the highest office in the land.

As with all entrenched daytime television shows, there seems to be no prospect of the Zuma soap opera concluding any time soon. But that history-shifting drama may have some competition, in its reach and impact, in the perennial soap opera that revolves around the fortunes of Western Cape judge president John Hlophe.

The Hlophe soap opera is, in part, intimately connected to that of the former president. And outside of the suggestions that Hlophe attempted to use his position to orchestrate pro-Zuma court rulings, there are also some powerful similarities in their plot-lines. These include the belief shared by Zuma and Hlophe that they have been mistakenly identified as villains when they are, in fact, victims.

While Zuma may no longer wield the kind of power that once made him a key player in SA’s story, Hlophe remains a polarising force in the nation’s legal community. He has had three brushes with impeachment, but only one complaint against him — related to his alleged efforts, in 2008, to swing a Constitutional Court ruling in favour of Zuma — has resulted in him actually facing an impeachment inquiry.

That inquiry has been stalled for two years for reasons that appear, on face value, to be flimsy.

Now a complaint laid against Hlophe by his deputy, Patricia Goliath, and a court case launched by forestry, fisheries & environmental affairs minister Barbara Creecy that involves Hlophe and his personal attorney Barnabas Xulu, have fuelled more controversy about the man who may just be SA’s most controversial judge.

To understand why the latest episodes of the Hlophe drama may have potentially devastating implications for SA’s bench, it’s important to focus on one of the most pivotal characteristics of any good soap opera: there is no sense that it will ever end.

With no resolution of the Hlophe saga in sight, it threatens to become an increasingly histrionic drama, challenging popular perceptions of judges dispensing justice in a calm, impartial and rational manner.

Even a cursory glance at the allegations and counterallegations made by Goliath and Hlophe against each other, and the fallout that has followed, reveals details so sensational, and so acrimoniously described, that they would not be out of place in the context of a bitter divorce. And many of these have an air of familiarity about them — a sense of a plot-line repeated.

The two judges’ mutual antagonism exploded into the public domain on January 15 this year, when Goliath lodged a 14-page complaint against Hlophe and his wife, judge Gayaat Salie-Hlophe. In it, she accused the pair of gross misconduct that, she claimed, had compromised the proper functioning of the Cape high court.

"I am sharply aware of the broader ramifications of this complaint," Goliath stated, with a clear consciousness of the storm that was about to rock the high court and the judiciary.

"However, I am left with no option but to pursue it in the light of the continuous, and sustained, assault upon my dignity by [Hlophe], who makes my working conditions intolerable."

Right at the beginning of Goliath’s complaint — in which she says Hlophe effectively sidelined her after she returned from serving as an acting justice at the Constitutional Court — she hints at what may have led to her apparent fall from the judge president’s graces.

"Hlophe has accused me of not supporting him," she says. "I accept that on several occasions we had disagreements. I sought on those occasions to uphold and protect the constitution in keeping with my oath, especially when his conduct fell short of an acceptable standard."

Goliath accuses Hlophe of trying to influence the appointment of judges perceived as "favourably disposed" to then president Zuma to preside over Earthlife Africa’s challenge to the Russia-SA intergovernmental agreement that would have paved the way for a R1-trillion nuclear deal.

She also says he gave preferential treatment to his wife and claims he assaulted and verbally abused two judges. One of them, Mushtak Parker, has denied that Hlophe assaulted him — a claim that has outraged the multiple judges to whom Parker allegedly reported his "Hlophe assault".

Hlophe responded to Goliath’s complaint with one of his own, in which he accuses Goliath of leaking her complaint to the media in "a deliberate, calculated political ploy to subject me and judge Salie-Hlophe to the torture of public condemnation and to increase calls for our removal from the bench".

He continues: "The leaking of the complaint to the media was not done to inform the public on matters of public interest, but was a malicious and bad-faith attempt to generate public outrage, lynching and condemnation at my leadership of the division and that would support calls for my immediate suspension and removal."

Hlophe adds that he has "been subjected to immensely prejudicial, unfair and adverse public commentary by journalists, the media and the general public" as a result of the leak of Goliath’s complaint — which, he says, "predictably" resulted in calls for his removal, "from quarters that have a history of attempting to devalue my contribution to the judiciary".

The conduct committee of the Judicial Service Commission (JSC) decided in a two-one split that neither complaint was worthy of an impeachment investigation. It’s a call that multiple legal insiders have described as "bizarre", given the seriousness of the accusations.

Hlophe’s response to Goliath’s claims does, however, make it very clear that he regards himself as an undeserving target. It also strongly suggests that he is convinced that any criticism of his leadership is unjustified and driven by illegitimate agendas rather than raising any real and salient concern about his conduct.

It’s an approach Hlophe has frequently employed in response to a myriad inquiries and court cases.

Those legal processes have raised serious questions about, among others, the judge president’s apparent bias in cases that involved his personal attorney, Xulu, and his decision to grant a company from which he’d received money from the right to sue his fellow judge, Siraj Desai.

To understand how the Hlophe saga assumed its soap opera status, and to evaluate whether he is correct in his projection of himself as a victim of a shadowy racist agenda, it is crucial to traverse the messy history of his brushes with impeachment.

It’s equally important to interrogate why, until now, the JSC has failed to deal with the deeply serious claims against him with any degree of urgency or seriousness.

Hlophe, then a full-time academic at the University of Transkei with a PhD from Cambridge University, was just 36 when he was appointed in 1995 to sit as the first black judge at the Western Cape High Court.

Five years later, he was appointed to head the court, which presides over some of SA’s most high-profile criminal cases, and, because of its proximity to parliament, is frequently called upon to decide key legislative disputes. Four years after his elevation to judge president, Hlophe became embroiled in a series of ugly controversies.

One centred on his handling of the now notorious "New Clicks" case, a crucial medicine-pricing regulation dispute between then health minister Manto Tshabalala-Msimang and certain pharmaceutical companies.

Hlophe and judge James Yekiso ruled in favour of the minister, while Hlophe’s then deputy, Jeanette Traverso, ruled in favour of the pharmaceutical companies.

The fact that the ruling was split would normally have been seen as a sure-fire reason to grant the pharmaceutical companies leave to appeal. Instead, Hlophe would wait an extraordinary five weeks before dismissing the application to appeal against the ruling.

That delay, in an urgent case with profound implications for all South Africans, resulted in the pharmaceutical companies’ lawyers taking unprecedented action: they appealed directly to the Supreme Court of Appeal, without Hlophe’s go-ahead.

The supreme court agreed to hear their application. Hlophe dismissed the application for leave to appeal two days after the appeal court had heard arguments on the case.

The saga became even more messy when the appeal court upheld Traverso’s minority ruling, overturning the one given by Hlophe and Yekiso.

In a scathing judgment, appeal court judge Louis Harms found that the judge president had denied the pharmaceutical companies the right to a fair hearing by unreasonably delaying his decision on their appeal application.

Hlophe reacted to the judgment by telling The Star that he "couldn’t care less", before denying that he had unreasonably delayed his decision on the application. "There was no delay in my view. I don’t know what they are talking about," he said.

Hlophe’s conduct in the pharmaceutical case arguably needs to be viewed within the context of another storm of controversy that engulfed the high court in November 2004.

Prior to the appeal court ruling, Hlophe released a 43-page "Report on Racism in the Cape Provincial Division", in which he accused Traverso and former Cape judge president Edwin King of racism.

In the report, Hlophe said he and other black judges had "numerous" experiences of racism by white colleagues "deliberately trying to undermine the intellect and talent of black judges".

He also accused one of the advocates representing the pharmaceutical companies, Jeremy Gauntlett SC, of racism — a move that suggested his belated response to the companies’ application may have been driven, in part, by his own personal antipathy towards the advocate.

The heads of court evaluated Hlophe’s report and found that his allegations "against individual judges and some of the members of the legal profession have, in general, been refuted by the persons concerned".

Hlophe, however, has never retracted the accusations, and his portrayal of himself as a victim of racist forces within the legal community was seemingly not undermined by the apparent lack of response to his report.

This was arguably due, in no small part, to apparent unresolved racial tensions within SA’s legal community, which had been the exclusive domain of white men for decades.

Five years after Hlophe accused white judges and advocates of trying to undermine black judges and stall transformation, he would suggest that his authorship of the report was the genesis of the second, as yet unresolved, gross misconduct complaint against him: that he had sought to influence two Constitutional Court judges to rule in favour of Zuma in 2008.

At the time, the newly elected ANC president was attempting to challenge the legality of search-and-seizure warrants used by the now disbanded Scorpions to collect more than 93,000 documents as evidence against him in raids conducted in August 2005.

Acting justices Bess Nkabinde and Chris Jafta would go on to tell the JSC subcommittee, tasked with deciding whether Hlophe should face possible impeachment, that the judge president told them both separately that the Supreme Court of Appeal — which had dismissed Zuma’s challenges to the legality of the warrants — had got it wrong.

According to Jafta, Hlophe told him that the cases involving Zuma needed to be looked at "properly" because he believed Zuma was being persecuted just as he (Hlophe) had been persecuted. Jafta said Hlophe told him "sesithembele kinina (we pin our hopes on you".

Jafta said he initially did not believe Hlophe was trying to influence him, but rather that he "was wishing for a decision that would favour Mr Zuma because the SCA had found against Mr Zuma and Thint [now Thales]".

Four weeks later, when he learnt that Hlophe had made an appointment to meet with Nkabinde, Jafta said he realised that the judge president may have been trying to influence him. He warned Nkabinde that Hlophe might try to discuss the Zuma cases with her.

In her evidence, Nkabinde said Hlophe had told her telephonically that he "had a mandate and that they could talk about privilege".

The issue of attorney-client privilege was one of the key challenges raised by Zuma’s lawyers, as the Scorpions had also seized multiple documents from Zuma’s attorney, Michael Hulley, during the raids.

According to Nkabinde, Hlophe told her, when he visited her in chambers, that the reason he was there was, among other things, that "a concern had been raised that people who are appointed at the Constitutional Court should understand our history".

Asked who these people were, Hlophe responded that he had "connection with some ministers, whom he from time to time advised".

According to Nkabinde’s evidence, Hlophe then started talking about the Zuma case, saying it was "an important case and that the issue of privilege was also important".

"It had to be decided properly because the prosecution case rested on that aspect of the case."

Nkabinde said she responded by snapping: "My brother, you know that you cannot talk about this case. You have not been involved in the case, you have not sat on it and you are not a member of the court to come and talk about the case."

She testified that Hlophe had then told her he did not mean to interfere with her work, but said he went on to explain "that the point is that there is no case against Mr Zuma".

He repeated that "Mr Zuma has been persecuted, just as he [Hlophe] was persecuted".

During his interview with the JSC subcommittee, Hlophe denied much of the evidence given against him, suggesting Jafta and Nkabinde may have misconstrued certain of his comments. He categorically denied trying to influence either of them.

In his written response to the JSC, Hlophe also suggested that the Constitutional Court complaint against him was driven by improper and potentially racist motives linked to his authorship of the 2004 report on racism.

"Before 2004, I was a darling of the legal profession," Hlophe stated. "I was a superstar. There were people in the legal profession, including some retired judges, who were saying openly that John is a star, he is a future chief justice of this country ... Until 2004. Until the racism report."

As he would later do in response to Goliath’s complaint, Hlophe laid a countercomplaint against the Constitutional Court judges, accusing them of breaching his rights because of the way they made their complaint.

In that countercomplaint, as he had done in response to Goliath, Hlophe strongly criticised the Constitutional Court judges, accusing them of jumping on the bandwagon of those who were trying to get him impeached, adding that this "kind of bandwagonism" had been "in vogue" since the release of his racism report.

Despite the obvious disputes in the testimony given by Hlophe and the Constitutional Court judges, and after not allowing any cross-examination of the judges to determine who was telling the truth, the JSC subcommittee found that "the evidence in respect of the complaint does not justify a finding that Hlophe is guilty of gross misconduct". The appeal court later overturned that decision, which it described as "an abdication of [the JSC’s] constitutional duty to investigate the complaint properly".

That was not the end of the drama, though. It would take years, and multiple legal challenges, before an impeachment tribunal related to the matter would finally get under way — only to be halted by Hlophe’s successful efforts to force the recusal of one of the judges who would decide his fate.

The tribunal has now been stalled again, over as-yet unresolved disputes between the government and Xulu over the state’s payment of his fees.

Xulu has his own dramatic plot-line in the story: environment minister Creecy has launched litigation containing damaging claims that Hlophe granted legally questionable orders in his lawyer’s favour.

What makes Creecy’s case particularly awkward for both Hlophe and Xulu is that it follows an appeal court ruling, three years ago, that admonished Hlophe for acting with apparent bias in a case involving Xulu.

In that case, Hlophe reversed an order obtained by the National Prosecuting Authority (NPA) for the preservation of the assets of businessman Matthews Mulaudzi, as part of the state’s efforts to prosecute him for a R48m fraud case.

In 2017 appeal court judge Visvanathan Ponnan slammed Hlophe for his "untenable" finding that the NPA had no prospect of convicting Mulaudzi. Worse, Hlope had ruled against the state without even reading its response to Mulaudzi’s claim of innocence.

Creecy’s case revolves around a September 2018 order granted by Hlophe, allegedly behind closed doors, to appoint Xulu’s firm, B Xulu & Partners Inc, as one of two "implementing agents" in a more than R100m American repatriation settlement.

Creecy has raised multiple questions in relation to that order, made in connection with American "Lobster King" Arnold Bengis’s criminal decimation of the West Coast rock lobster population. She wants the order rescinded, a move that will again place Hlophe’s relationship with his attorney under a harsh judicial spotlight.

It must be pointed out that this foray into the Hlophe soap opera captures only limited highlights (and low lights) from his 20-year reign as the Western Cape’s most powerful judge.

Right now, his court is deeply divided into camps that either ardently support him or oppose him. If good leadership is about unity, harmony and reasoned disagreement, then Hlophe has clearly failed on that count.

If, however, he is measured on his ability to manoeuvre his way out of situations that seem certain to end in his undoing, he is clearly a master strategist.

Hlophe may turn out to be neither a super-villain nor a victim. But he is a very clever man, who has been able to both expose the divisions within the judiciary and benefit from its greatest weakness: its inability to hold itself accountable.

In doing so, he’s been able to ensure that his soap opera continues to run, without any fear of resolution, for as long as he wants it to.