Judiciary’s Teflon man

2020-01-29 06:00

THE judiciary is widely and deservedly credited for holding up during former president Jacob Zuma’s disastrous decade in office.

Although Zuma may have tried to influence the judiciary in his favour, by the appointment of certain judges for example, he failed.

Time after time, the corruption-accused former head of state lost in court when a civil society group or opposition party challenged his authority.

A seminal judgment against Zuma was delivered by the Western Cape High Court in April 2017, when it stopped the government’s foolhardy approach to push through a nuclear deal with Russia that would have bankrupted the state.

But history could have turned out differently if Western Cape Judge President John Hlophe had had his way.

In an extraordinary complaint filed with the Judicial Service Commission (JSC) last week, Hlophe’s deputy, Judge Patricia Goliath, accuses the judge president of a litany of misdemeanours, including that he allegedly wanted to appoint pro-Zuma judges to the nuclear case.

Zuma, Hlophe allegedly told Goliath, was at the receiving end of “unwarranted criticism” over the nuclear deal.

“He attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed to the former president,” Goliath stated in her sworn statement.

Tempting as it may be to import the Biblical metaphor of David and Goliath here, the inverse is more accurate.

Goliath is David and Hlophe Goliath in this case.

If the treatment of Hlophe by the JSC over the past 16 years is anything to go by, Goliath shouldn’t hold her breath. Hlophe may well be above the law.

It was not the first time Hlophe had allegedly tried to intervene on behalf of Zuma. In 2008, the JSC was handed one of the most serious cases of misconduct against a sitting judge since the advent of democracy.

The case was straightforward and ghastly: Hlophe had allegedly made his way to Braamfontein in Johannesburg, where the Constitutional Court is seated, and attempted to influence judges Chris Jafta and Bess Nkabinde to rule in Zuma’s favour in a case involving the legality of the erstwhile Scorpions’ search warrants (Zuma lost the case).

The case was referred to the JSC by all the judges of the Constitutional Court. Twelve years later, a judicial tribunal into the case is yet to get under way.

This, after numerous years of delays, objections and appeals by Hlophe and the two judges involved.

It is not unreasonable to say the JSC has gone out of its way to avoid dealing with this matter.

It’s not the only Hlophe matter in their inbox.

Since 2004, complaints have piled up against Hlophe at the JSC’s office.

The list is filled with allegations you don’t want the most senior judge in one of the most important jurisdictions in your country to face.

• Hlophe allegedly failed to declare income he received from the Oasis Financial Services Group, and negotiated a tax amnesty for his failure to pay tax on the money;

• Hlophe allegedly told a white lawyer in his office, in front of a colleague: “You’re nothing but a piece of white s**t and it’s time you go back to Holland”;

• Hlophe allegedly told colleagues at a cricket match at Newlands that he assigned a school language case to Judge Wilfred Thring to “f*** it up and it can be fixed on appeal”, and

• Hlophe was criticised by the Supreme Court of Appeal in 2017 for allegedly ignoring a complaint of bias against him in a case in which his personal attorney, Barnabas Xulu, represented the applicant.

The list is not exhaustive, but you get an idea of the alleged type of person who is leading the bench in the Western Cape.

The JSC is now faced with the most comprehensive and serious complaint yet against the Teflon man of the judiciary. Will it show integrity and deal with Goliath’s complaint in a thorough and speedy manner that will restore the credibility of Hlophe’s office?

Or will another decade pass during which it dilly-dallies until Hlophe has retired or the matter is forgotten?

• Adriaan Basson is editor-in-chief of News24.

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