Judge Kriegler calls for Hlophe’s removal from the bench

Former constitutional court judge Johann Kriegler, who chairs the influential civil society activists Freedom Under Law, has called for the immediate removal of Western Cape Judge President John Hlophe from the Bench.

The Cape Town legal establishment has been plunged into disarray ever since the Deputy Judge President of the Western Cape, Judge Patricia Goliath, filed a detailed complaint of serious misconduct against Hlophe, her direct superior, to the Judicial Services Commission (JSC).

The JSC is tasked with appointing and disciplining judges in South Africa. It is chaired by the Chief Justice (currently Judge Mogoeng Mogoeng) and includes senior judges, senior politicians from several parties, top legal academics and the leadership of the country’s advocates and attorneys.

The allegations against John Hlophe

Goliath’s complaint against Hlophe includes chapter and verse on alleged transgressions which, if true, would be unprecedented. The allegations include serious physical domestic violence, that Hlophe physically assaulted a judge, made racist comments about white judges, allowed his wife (Judge Gayaat Salie-Hlophe, who serves in the same division) to take decisions on whom among the legal fraternity gets invited to be acting judges and much more in the same vein.

In a scathing article published in The Daily Maverick, Kriegler heaped scorn on Hlophe, Mogoeng and the JSC for essentially failing to do their job, to the detriment of the country.

Kriegler focuses on another extremely serious allegation in Goliath’s complaint. She states that when Earthlife Africa approached the Cape High Court in 2015 to declare the Zuma government’s secretive and potentially financially ruinous (experts projected the cost at R1 trillion to the taxpayer) Russian nuclear deal illegal and therefore invalid, it fell to her to decide which judge should hear the case.

According to Goliath’s detailed complaint, Hlophe tried to influence her to hand the task to a judge whom he felt would be sympathetic to the Zuma government. If that allegation proves correct. it would be  a breathtaking betrayal and attempted destruction of everything the judiciary represents.

In the event, Goliath decided to hear the case herself. In one of the most important, acclaimed and progressive judgments of the South African democratic era, she found against the government and prevented imminent catastrophe.

In her complaint, Goliath states that after the judgment, Hlophe castigated her for finding against the government and for criticising the Zuma regime’s mishandling of the issue.

Not the first time Hlophe stands accused

In his article, Kriegler recalls that this is the second time that Hlophe stands accused before the JSC by one of the most senior members of the judiciary of trying to coerce judges to find in favour of Zuma in a case in which he had no say or role whatsoever.

The previous complaint was lodged at the JSC twelve years ago by Constitutional Court judges Bess Nkabinde and Chris Japhta, who alleged that they were each approached by Hlophe with a request and even attempts to convince them to find in Zuma’s favour in a case before the Constitutional Court – a court where Hlophe has no role and no business.

With cold fury, Kriegler details how the JSC has still not dealt with the case – it has been postponed for twelve years. In Kriegler’s words, the JSC even tried to cover it up, and might well have succeeded to just let it be had the Supreme Court of Appeal not granted Freedom Under Law’s plea for a court order officially telling the JSC to deal with the case.

Kriegler chronicle how, at the time, an agreement was reached between Hlophe and the Minister of Justice that he would stand down from his judicial duties until the JSC had finalised the matter.

Nevertheless, as Kriegler writes, eight months later Hlophe arrived back at court and took up his duties as judge president although the matter had not been settled. Hlophe did not consult or even inform the Minister of Justice or the JSC. He just did it.

Chief Justice cops criticism

After dealing with the past in some detail, Kriegler returns to the present. He notes with palpable disdain how weak Mogoeng as head of the judiciary and the JSC (which is literally administered from Mogoeng’s office) has handled both the most recent complaint against Hlophe and the subsequent untenable and unprecedented toxic chaos at the Western Cape High Court.

When the Cape Bar requested Mogoeng as head of the judiciary to prevail upon the four Cape High Court judges implicated in Goliath’s complaint to take leave from the Bench until the JSC settles the matter, Mogoeng flatly refused to do so.

Shortly thereafter, the JSC (as run from Mogoeng’s office) issued an official statement berating anyone who airs the opinion that the JSC should treat Goliath’s complaint with utmost urgency. The JSC made it plain that the complaint will not be specifically prioritised.

Ending off powerfully, Kriegler was too elegant to issue a blunt threat, but his cutting finale could only serve as a serious warning that Freedom Under Law knows how to get the court to compel the JSC to do its job, when the JSC is too weak to do so of its own accord:

“The time for pious legalistic platitudes has passed – if ever there was one. The problem created by Judge Hlophe has to be confronted once and for all.”

“Every day of inaction that passes further erodes public faith and optimism,” Kriegler’s article concludes.