George Devenish
4 minute read
6 Jun 2008

Protecting the judiciary

George Devenish

Hlophe is sowing the seeds of a constitutional crisis

Last week, the public was informed by an unprecedented statement issued by judges of the Constitutional Court that it had lodged a bombshell complaint against the Judge-President of the Cape High Court, John Hlophe.

The complaint relates to alleged interference by Hlophe in four matters concerning Jacob Zuma, in which argument was heard in March this year and on which judgment was reserved by the Constitutional Court. Hlophe is accused of trying to influence Constitutional Court judges to rule in favour of Zuma and Thint in the search and seize cases.

This complaint, lodged with the Judicial Services Commission (JSC), concerns the independence of the judiciary, which is dealt with in section 165 of the Constitution and which stipulates that the courts are independent and subject only to the Constitution and the law. No person or organ of state may interfere with the functioning of the courts.

This is an extremely serious matter and it has in it the seeds of a constitutional crisis. As the Constitutional Court points out in its statement, South Africa is a democratic state, founded on certain intrinsic values. These include constitutional supremacy and the rule of law. This is stated in section one of our Constitution. The judicial system is an indispensable component of our constitutional democracy. Any attempt to undermine it must be perceived in a very serious light and dealt with as such.

The Constitution makes provision for the impeachment of members of the bench in section 177. This provision stipulates that a judge may only be removed from office if the following two-stage procedure is complied with:

(a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and

(b) the National Assembly calls for the judge to be removed by a resolution adopted with a supporting vote of at least two-thirds of its members.

The president is obliged to remove the judge upon adoption of such a resolution calling for that judge to be removed for gross misconduct, referred to in section 177(a) above. The JSC could ask Thabo Mbeki to suspend the judge pending the finalisation of the proceedings against him or her.

In issuing a public statement concerning Hlophe’s conduct in this affair, the Constitutional Court is in effect calling for the impeachment of the Judge-President. Both the JSC and the National Assembly, in which there would have to be a public debate preceding the said resolution, would have to have very convincing reasons not to comply with the Constitutional Court’s request.

Hlophe’s position as Judge-President of the Western Cape has become untenable. Hlophe is, however, no stranger to intense controversy. Despite this, the JSC has displayed reticence in dealing with him in an appropriate manner. So, for instance, in October 2007, it decided by majority vote that Hlophe would not be indicted for impeachment, following a complaint that he had given permission in October 2007 to the Oasis Group Holdings to sue his fellow judge, Siraj Desai, for defamation, while he, Hlophe, was receiving a handsome retainer from Oasis.

In September 2005, the Cape Bar council laid a charge relating to alleged racism against him for allegedly calling a Cape Town lawyer, Johan Greef, “a piece of white sh.t” and telling him to go back to the Netherlands. Hlophe denied the charge.

The honourable thing to do would be for Hlophe to resign forthwith. This has been called for by three eminent people: Professor Hugh Corder, Dean of the University of Cape Town Law School; advocate Paul Hoffman, director for the Centre for Constitutional Rights; and Helen Zille, leader of the Democratic Alliance. However, judging from his previous conduct he’s unlikely to do so. He will probably dig his heels in and try to ride out the storm. In the past, in the face of very serious criticism and calls for his resignation, he has acted with bravado as if he is virtually untouchable. He apparently has friends in high places, both in the judiciary and the government.

Hlophe is talented, bold and very ambitious, and is tipped by some commentators as the future Chief Justice under a Zuma administration. Chief Justice Pius Langa is expected to retire next year and the very talented Dikgang Moseneke, his deputy, has blotted his copybook with the Zuma camp because of a statement made after the Polokwane Congress. Hlophe has apparently seen the metaphorical gap.

His ambition and the questionable methods employed by him to obtain high office could cause a very serious constitutional crisis, involving not only the judiciary but the other two branches of government as well. Hlophe has, in the current debacle, overstepped the mark and may be unable to weather the storm. He is, however, unlikely to depart without a fight, which could have serious ramifications for the reputation of the judiciary and the body politic.

• Professor George Devenish is a Democratic Alliance councillor with the Ethekweni Municipality. He writes in his personal capacity.