Saturday, September 19, 2009

Fit to Judge?

This article on "Slippery Hlophe"was published in The Star today. Will this idiot be elected onto the Constitutional Court this week-end?


By Fiona Forde

The late Ismail Mohamed, the country's first black chief justice, once put words on the many and subtle qualities that comprise the judicial temper."Conspicuous among them are scholarship, experience, dignity, rationality, courage, forensic skill, capacity for articulation, diligence, intellectual integrity and energy," he said in a public address in 1998, just a few years before his premature death.

"More difficult to articulate but arguably even more crucial to that temper, is that quality called wisdom, enriched as it must be by a substantial measure of humility, and by an instinctive moral ability to distinguish right from wrong and sometimes the more agonising ability to weigh two rights or two wrongs against each other, which comes from the consciousness of our own imperfection."

And society, the former chief justice argued, is entitled to demand of its judges a fidelity to those qualities.

Mohamed's words will undoubtedly ring loud this weekend when some of the country's top judges gather to argue their fitness for inclusion on the 11-member Bench of the Constitutional Court.

Among them will be Cape Judge President John Hlophe, a man who has courted controversy for so long that he now stands over a track record that is regrettably ill-fitting for a senior judicial officer.

That was not always the case, however. His first appointment to the Bench came at the remarkably young age of 35 when he joined the Cape High Court. That was January, 1995.

He had little or no practical experience to his name at the time, though he was widely recognised as an excellent legal academic and was known for his incisive papers on Legitimate Expectation which are regarded by many of his peers as superb contributions to that area of law to this day.

He rose steadily - and many would argue speedily - through the court ranks in the years that followed.

He was appointed Deputy Judge President of the Cape Provincial Division in November 1998 and became the President of the same division on May 1, 2000.

However, a cleavage had already begun wedging its way through the Cape Bench, though it would only come to light in 2004 when Judge Hlophe penned his infamous 43-page report on racism in the Cape Provincial Division.

It was unprecedented, not only for its content but for the fact that Judge Hlophe chose to ignore the critical separation of powers and shot over the head of then Chief Justice Pius Langa by sending the document directly to Brigitte Mabandla, who was then the Minister of Justice. She wisely chose to send it straight to Chief Justice Langa.

What the Chief Justice read were the words of a vicious nib, a document that cast light on the darker side of the moral fibre of the legal fraternity.

Judge Hlophe wrote about the isolation he felt on the Bench; how he was looked upon as a "legal non-entity"; how his appointment was perceived as a stroke of "tokenism"; how he and his black peers did not make it on to the white-only social calendar; how "the Cape Bar is very reactionary" and "despises black judges". The report went on to read how his peers looked upon him as a "corrupt" individual, an assertion he would repeat again and again in the document. "Black talent" was generally disregarded by the white robes.

His push to transform was blatantly not welcome and his judgment during the medicine prices court cases earlier that year had been questioned, a case that brought the simmering tensions in the division to boiling point and prompted the controversial report. By the time he signed his name at the foot of the last page, few had escaped his wrath. He not only accused his right-hand woman Jeanette Traverso - with whom he had initially enjoyed a good relationship - of being racist, but also Edwin King, Arthur Chaskalson and George Bizos and a string of other senior members of the fraternity.

Not surprisingly, his report sparked a debate that ripped right through the country and lingered for a long time. If the legal world of the new South Africa was as racist as Judge Hlophe contended, the uproar was not unexpected.

However, the Heads of Court would later find that Judge Hlophe's claims of a vendetta were no more than baseless allegations, with no substantiating evidence.

Judge Hlophe had shown himself up as a man with a thin skin, hardly an appropriate quality for an aspiring judge. Furthermore, his memory appeared selective. There was no mention in that report of the fact that concessions had been made for him to join the Cape Bench in 1995 on account of his thenlow level of Afrikaans, or indeed that they were made by the so-called racist white judges.

Judge Hlophe also failed to mention thata few years earlier he had adjourned the trial of the man accused of ordering Marika de Klerk, the former first lady, to take long leave, something that was and still is regarded as judicial anathema.

What he did make apparent, inadvertently perhaps, was that rather than lead from the front, he had chosen to divide. And he did so with the race card, which he looked upon as a good plank, a soap box upon which he would stand to build himself up and upon which he would tread in the years that followed like a cat on a hot tin roof.

As that debacle continued, another storm was beginning to brew. It was alleged that Judge Hlophe had assigned a case to Cape High Court Judge Wilfred Thring "because I knew he would f**k up the trial and then it could be set right on appeal".

Around the same time he called attorney Joshua Greeff "a piece of white sh*t" who "does not deserve to walk the corridors of the higher court", according to a sworn affidavit by an advocate who was also a witness to his mutterings.

A year later, the spotlight focused on his son, who was receiving a bursary intended for "disadvantaged students" from a legal firm whose former partner was becoming a regular face as an acting judge in the Cape High Court - and who was appointed by none other than Judge Hlophe.

All the while, Judge Hlophe, a man who had been incensed that his peers would look at him as a corrupt individual, as he put it in the 2004 report, was found to be lining his pockets with extra income from the Oasis investment group, which he had failed to declare to either the fiscus or his colleagues.

Not only that, he also gave permission for Oasis to proceed with a legal challenge against one of his own judges.

As he tried to defend himself, Judge Hlophe wrote a letter to a Sunday newspaper denying he was on a retainer from Oasis and saying he was receiving only "out-of-pocket expenses".

It would later transpire that he had received half a million rand from Oasis, a commercial litigant in his own court, another example of judicial anathema. Another ethical lapse.

He was suspended while the Judicial Service Commission (JSC) began deliberating over four serious complaints that had been lodged against him.

Yet to the surprise of many, the JSC decided to let Judge Hlophe off the hook of impeachment which was dangling in his face.

That was October 2007 and it would later emerge that the vote was tight: six against the man, seven in favour, with Chief Justice Langa casting the vote that would save his professional skin: Hlophe was fit to judge.

If Judge Hlophe had been wise he would have recognised the gift he had been given, cut his losses and curbed his tongue. But he did not and seven months later the Constitutional Court - to which he is now presenting himself as a suitable candidate - told the world how Judge Hlophe had attempted to "influence" its judgment in favour of Jacob Zuma, who was facing charges of corruption.

In true Judge Hlophe style and eloquence, he dismissed the report as "utter rubbish".

That was a saga that would divide the JSC for a second time in as many years over the same individual, and late last month Judge Hlophe again walked away from charges of gross misconduct.

According to the JSC, "his conduct may have been unwise, ill-considered, imprudent, not thought through. But in and of itself it is not gross misconduct."But it was misconduct, nonetheless, perhaps the lesser of the two evils but hardly fitting for a man of his stature. What of the wisdom former chief justice Mohamed talked of or the prudence that is surely required to administer the scales of justice?

It was hardly a call for victory yet Judge Hlophe walked away with a swagger and to Kliptown in Soweto he will stride tomorrow to bid for a place on the Bench, ironically the same Bench he has also divided.

Earlier this year, and on the eve of the general election, President Jacob Zuma took former chief justice Mohamed's sentiments one step further when he told this newspaper that the Constitutional Court "is not God", adding that he thought it perhaps unwise that "we should have people who are almost like God in a democracy".

Surely Judge Hlophe will be the first to admit, to himself at the very least, that he is not the infallible disciple in their midst. Will he concede that he has erred seriously over the years or that he has called the judiciary and his person into regrettable disrepute? Will he contemplate the fact that he has tragically distorted the critical project of transformation in the process?

Only the JSC can now decide if Judge Hlophe is a man who is deserving of a place in the highest court and if he is a person who can exercise the kind of fidelity to the judicial temper "which legitimises the exercise of judicial power", as former chief justice Mohamed put it.

Should the JSC decide to grant him the opportunity to preside over constitutional matters, it will also need to ponder the danger of another ethical lapse and the grave harm that would pose.


This article was originally published on page 15 of The Star on September 19, 2009.

1 Opinion(s):

WHITEADDER said...

There can hardly be a more fitting person to be a high ranking judge in the lunatic bin South Africa has become than opportunistic, racist, money grabbing Shlope.