Politics aside: the precautionary suspension of John Hlophe is, legally speaking, inevitable

28 August 2022

The embattled judge president of the Western Cape High Court, John Hlophe, long protected by questionable decisions of the Judicial Service Commission, has turned on his former guardian in an extra-ordinary attempt to impugn its decision to recommend to the president, Cyril Ramaphosa, that he be placed on precautionary suspension while litigation concerning his impeachment as a judge is pending before the courts.

The whole basis for Hlophe turning to the courts is entirely misconceived. He approaches the matter as if his precautionary suspension is a form of punishment. It is not. The president may, as a matter of serving the legitimate purposes of government, impose a precautionary suspension. This suspension is not only pending the final determination of the litigation attacking the decision of the JSC that he must face proceedings in parliament for his removal from office, but also pending the decision by parliament itself.

This latter decision is required, by law, to enjoy a two thirds majority of the National Assembly. The fact that Hlophe is litigating on all fronts is a clear indication that he is not confident that he can ride out the storm with the political support he might have enjoyed in the Zuma era as the “prototype” of the transformation of the judiciary in his capacity as the most senior judge president in the country and its first black judge president.

As any good law student will tell you, if you ask, precautionary suspensions are not a form of punishment. They are put in place to preserve the status quo with the least possible disruption in the workplace, whether that workplace is the factory floor or the corridors of power in Keerom Street, the seat of the court over which Hlophe presides.

Hlophe will retain all of his privileges as the judge president, including not inconsiderable emoluments and a car, but will lose the power he wields in his official capacity, temporarily, if his litigation is a success and permanently, if parliament, as he apparently fears, votes to ask the president to remove him from office.

To reach that point, the decision of the JSC panel which found Hlophe guilty of gross misconduct must survive the pending appeal proceedings against it and two thirds of the National Assembly must call for his removal.

According to section 177(3) of the Constitution, the president may, on the advice of the JSC, suspend any judges who are the subject of a procedure for their removal from office. This procedure is not unknown. The judge found guilty of drunken driving, Nkola Motata, endured years of suspension uncomplainingly while his case trundled through the courts.

There is only one reasonable explanation for the failure of the JSC to suspend Hlophe many years ago. It is that his alleged misconduct in trying to influence the outcome of a Constitutional Court decision in order to have it favour Jacob Zuma in his quest for political power was regarded by a then majority the JSC members, wrongly as it turns out, as being within the bounds of proper judicial conduct and that there was nothing wrong in what Hlophe did.

That misperception has been corrected by the courts. Clearly, once the JSC panel ruled against Hlophe, the way was open for the JSC to reconsider the recommendation of his suspension by the president. The previous misperception was by then no longer in play.

This rethink was duly done and the JSC, very properly, given the finding of gross misconduct, decided to ask the president to place Hlophe on precautionary suspension. This came as a great relief to legal practitioners in the Cape Town High Court and to those who litigate in that court. It may even have come as a relief to some of the judges in that court.

Hlophe gives the appearance of being affronted by the decision of the JSC to recommend his suspension. It is doubtful that this is genuine. Far more likely is that the wailing and gnashing of teeth in his founding affidavit in the latest round of litigation is better described as the activity of one deeply involved in a Stalingrad strategy designed to keep him in office for life, or failing that, for as long as possible.

Given the age of the Constitutional Court’s complaint against Hlophe, the strategy has worked so far, but now seems to be running out of steam as Hlophe’s room for manoeuvre becomes ever more restricted and prejudiced by each new outrage in which he involves himself with scant regard for the Judicial Code of Conduct by which he is bound.

The JSC is an organ of state. All organs of state are obliged to “assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.” These requirements of section 165(4) of the Constitution come into play when the JSC decides whether or not a suspension should be recommended to the president.

In Hlophe’s case there are many good reasons for suspending him. His activities in Braamfontein attempted to undermine the independence, impartiality, dignity and effectiveness of the highest court in the land. Had his appeal to those he regarded as Zuma’s “last hope” been a success the ascension of Zuma to power would have been even more tainted and flawed that it was because a rigged result in the litigation pending before the Constitutional Court would have facilitated it.

The brooding presence of Hlophe on the Cape Town bench has taken a heavy toll. He has allegedly bullied his deputy by side-lining her and, according to her, made her the victim of his racism which is already well documented. He has allegedly punched a junior colleague and has also allegedly attempted to gerrymander the selection of judges for cases, notably in the nuclear build case.

His wife is a fellow member of his bench, never a good idea, and she has become embroiled in the accusations and counter-accusations with his deputy. All these issues remain unresolved. While they do, common sense dictates that he should be placed on precautionary suspension.

In the JSC decision-making in the case, common sense has at last prevailed. The sound and sensible urgings of Freedom Under Law to achieve this result in the pursuit of its advocacy of Hlophe’s removal from office have been unjustifiably criticised in the papers filed of record by Hlophe in his latest round of litigation. FUL exists to uphold the rule of law in SA. It enjoys free speech, like everyone else, and is entitled to campaign against threats to the rule of law, the compromising of the independence of the judiciary, and the undermining of the probity and integrity of our judges.

Hlophe should also be regarded by the president as a recidivist when it comes to judicial misconduct. In the past the JSC has been particularly indulgent towards him. He faced earlier disciplinary proceedings in which much “sweeping under the carpet” and a slap on the wrist occurred. These have been traversed before in previous analysis of his chequered earlier career on the Cape bench, starting soon after he became its leader. 

It is ironic that Hlophe himself initially acknowledged the need for him to stand down when the Constitutional Court justices laid a complaint with the JSC after it came to light that he attempted to inveigle two of the most junior justices to take Zuma’s part in the pending decision in the litigation flowing from the arms deals.

It is ironic that both justices have since retired – Hlophe has outlived them on the bench and has in the process done untold harm to the fabric of dispute resolution in his division of the High Court. He eventually returned to work from his self-imposed gardening leave for no better reason than he became bored with all the gardening he had completed. It must be very hard for counsel practicing in his court to explain to the litigants that they represent that Hlophe, despite all his woes, plays a pivotal administrative role in allocating judges to their cases in his courts.

The president is currently considering the advice of the JSC that he suspend Hlophe. In exercising the discretion that the Constitution accords him, the president will be astute to ensure that his decision in the matter serves a legitimate purpose of government. It would appear that so much harm has been done already by Hlophe’s continued presence at his place of work that a precautionary suspension cries out to be imposed on him.

Legally speaking, the suspension of Hlophe seems inevitable.

From a political point of view extraneous and irrelevant considerations around the factional issues withing the ANC and the EFF may come into play. They should not, certainly not if the president keeps his eye on the ball and makes his decision with the best interests of the country and constitutionalism in mind.

It seems likely that the EFF and pro-Zuma members of the ANC caucus in the National Assembly will support Hlophe when the removal from office vote is taken. Some members of smaller parties may follow suit. If Hlophe has the backing of a third plus one of the members he will escape impeachment, serve out his time on active service and enjoy the generous benefits that all judges in good standing have in SA for life. If not, he will be removed from office and will lose the privileges of the employment package of a judge president.

The entire saga has gone on long enough. The litigation attendant upon it should be given priority on all rolls for hearing and the end of the process should be reached “diligently and without delay” as is required by section 237 of the Constitution.

The judiciary is the weakest, smallest and most vulnerable branch of government. It should be astute to protect itself because of the pivotal role it plays in upholding constitutional democracy under the rule of law. The many and varied ways in which Hlophe has brought the judiciary of SA into disrepute need to be addressed without delay. Proper case management can achieve this, and court managers should do so in the interests of achieving what Section 165(4) of the Constitution requires.

Paul Hoffman SC is a director of Accountability Now