JUDGE PRESIDENT MANDLAKAYISE JOHN HLOPHE AND THE JUDICIAL SERVICE COMMISSION
Last month Freedom Under Law (FUL) heard that Judge Hlophe had sat as a member of the Judicial Service Commission during the previous week. This was a most disturbing discovery as Judge Hlophe had outstanding against him two charges of gross misconduct warranting his impeachment, the first laid by the justices of the Constitutional Court in May 2008 and the second by FUL itself in May this year.
A letter was immediately despatched to the Chief Justice. In relevant part it is attached as attachment 1. The Chief Justice responded as appears from attachment 2. The FUL board considered this response and on 6 November a reply was sent to him as appears from attachment 3. No response was received and on 15 November yet another letter was sent -- see attachment 4.
It has subsequently transpired that it is unlikely that either the complaint of the justices or our own complaint will be heard in the foreseeable future. This is unacceptable in our constitutional democracy. Freedom Under Law is anxiously considering what steps can be taken to put an end to this ongoing insult to the integrity of the judiciary.
1. Letter from Johann Kriegler to Chief Justice Mogoeng Mogoeng, October 14 2011:
24 October 2011
Chief Justice Mogoeng Mogoeng
Constitutional Court
Constitution Hill
JOHANNESBURG
Dear Chief Justice
JUDGE HLOPHE AND THE JUDICIAL SERVICE COMMISSION
To say that we were astounded would be an understatement: a person charged with the most serious allegations of both criminal conduct and gross misconduct as a judge was openly - and ostensibly with the consent of the chief justice, the ultimate arbiter of judicial propriety - screening candidates for their fitness for judicial office. It is not as if the charge against him appeared trivial or had emanated from a doubtful source. On the contrary, the charge was one of gross judicial misconduct warranting impeachment and had been submitted to the JSC by the chief justice and other justices of the Constitutional Court, the highest court in the land, based on information provided by two of their number. This charge had, moreover, upon examination by the JSC itself, been adjudged of sufficient substance and gravity to warrant a full-scale enquiry with a view to possible impeachment of the impugned judge.
Nor can it be said that the subsequent decision of the reconstituted JSC to close down such enquiry part-heard had put an end to the charge. Even less can it be said that Judge Hlophe has been exonerated. The allegation that for political reasons he had tried to interfere with the adjudication of a highly contentious matter stands unresolved.
Clearly a resort to the so-called presumption of innocence enshrined at the heart of the fair-trial rights in our Constitution is wholly misplaced in the present context. Judge Hlophe has not (at least thus far) been charged before the criminal courts. We are not here concerned with criminal proceedings but with a constitutional mechanism aimed at safeguarding the integrity of the judiciary and the legitimacy of the administration of justice. In our respectful view it is unthinkable for a man ostensibly reliably charged with gross misconduct to be a member of a body such as the JSC.
In any event, as you know full well, the Supreme Court of Appeal ordered the JSC to reopen the enquiry and as matters stand at this stage the JSC is obliged to obey such order. It seems very strange that this adjudicatory body could in such circumstances have welcomed into its deliberating bosom the very suspect whose conduct it is obliged to probe. Absent clarification, there is a reasonable apprehension of bias.
Indeed, the fact that a belated application for leave to appeal to the Constitutional Court against such order is pending further bedevils the matter. You, as chief justice, will in the ordinary course be expected to preside when such application is determined but your association with and apparent approval of the impugned judge might give rise to the question of your recusal, possibly necessitating yet another postponement of a matter that should long since have been disposed of. If the two justices are correct, an unworthy man has been exercising judicial authority for far too long already.
Then, of course, there is FUL's own charge of gross misconduct against Judge Hlophe in which you and the disciplinary component of the JSC might well have to make findings of fact, of law and of judicial propriety. As you will recall, the charge rests on the scurrilous and groundless allegations Judge Hlophe admittedly broadcast about his colleagues. In the circumstances it is most disconcerting that the person whose conduct and credibility will have to be evaluated is ostensibly welcomed by the JSC as a person in good standing. It is difficult to escape the apprehension of partiality on the part of the tribunal due to deal with FUL's charge against Judge Hlophe.
In the circumstances outlined above, I respectfully yet urgently request you to clarify why Judge Hlophe was allowed to form part of the JSC last week, to give an assurance that this will not happen again unless and until he has been exonerated on the charges against him, and thus to put at rest the very real apprehension that you and your colleagues on the JSC regard Judge Hlophe as a fit and proper member of the judiciary.
I would be delighted to report to my FUL colleagues that there is no reason to doubt that the charges against Judge Hlophe will be adjudicated fairly and impartially. So, please let me hear from you at your earliest convenience.
Yours sincerely
Johann Kriegler
2. Letter from Chief Justice Mogoeng Mogoeng to Johann Kriegler, October 28 2011:
From: "Mogoeng,Chief Justice of the Republic of South Africa"
Date: 28 October 2011 3:57:04 PM SAST
To: "Johann Kriegler"
Subject: RE: Judge Hlophe and the JSC
Dear Justice Kriegler
I acknowledge receipt of your letter which was sent just before I left the country. I have just found a connection hence my belated response.
Judge President Hlophe stood in for Judge President Ngoepe and I interacted with him not only during the JSC hearings but also at the Heads of Courts meeting on 9 October 2011. It may interest you to know that I do not intend to be part of the panel that will entertain the Hlophe matters in the Constitutional Court for reasons different from those you seem to have in mind.
As for the rest of the concerns you have about his future involvement in the JSC hearings and the assurance you apparently seek, I choose not to act unilaterally but to involve my JSC colleagues in deciding the matter. It may well be that the implication of your concern is that he should not even sit as Judge President when candidates are interviewed for appointment to the Division of which he is the leader. The JSC as whole will reflect on your concerns and you will be informed of its decision after its next meeting in April. It may well be that Hlophe JP has to be afforded the opportunity to respond to your statement.
Our engagement on this matter will end here for now.
Regards
Mogoeng Mogoeng
3. Letter from Johann Kriegler to Mogoeng Mogoeng, November 6 2011:
November 6 2011
Chief Justice Mogoeng Mogoeng
Constitutional Court
Constitution Hill
JOHANNESBURG
Dear Chief Justice
JUDGE HLOPHE AND THE JUDICIAL SERVICE COMMISSION
The board of Freedom Under Law ("FUL") having now had an opportunity to consider your e-mailed letter dated 28 October 2011, I am able to respond more fully. I do so with some hesitation in the light of the concluding sentence of your letter but hasten to assure you that I write in a spirit of respectful co-operation and in order to protect the image of the judiciary and thus to promote the rule of law. These, I submit, are matters in respect of which you and we in FUL have a mutual interest and a shared responsibility.
Let me add in the same spirit that FUL does not seek confrontation with you, the Judicial Service Commission ("the JSC") or the judges president as to how you are to conduct your official business. But FUL not only shares the legitimate interest of the public at large in the manner in which such business is conducted; it also has a particular concern with the action - or, rather, the inaction - of the JSC regarding Judge Hlophe and the extremely serious charges outstanding against him.
I regret to say that we simply cannot stand by until, at the earliest, April next year while a judicial officer under such a serious cloud is not only allowed to perform the functions of the judge president of the oldest high court but continues to serve as a member in good standing of the JSC. He is under professional indictment on two charges, either of which, if proved, would warrant his dishonourable discharge. The first charge rests on the evidence of two justices of the highest court in the land and the second is founded on his own words.
It is questionable enough that Judge Hlophe has continued to perform judicial duties despite being effectively put under indictment again by the judgment in the Supreme Court of Appeal in March this year, but unless and until his name has been cleared in a proper enquiry, he is plainly not fit to weigh the fitness for appointment or promotion of judges. All of this the public knows; and indeed there has been recent adverse public comment on his participation in the activities of the JSC and ongoing disquiet in the legal profession.
FUL, of course, is both a long-standing litigant and an increasingly frustrated complainant against Judge Hlophe. We are acutely aware of the anomaly of the judge president's ostensible acceptance by his peers serving in the very body that is to judge his fitness to continue in his high office.
Obviously it is for you to decide on your course of action - whether you convene a special meeting of the JSC or in some other manner canvass the views of the members, whether you persuade Judge Hlophe to withdraw from the activities of the JSC, delegating his duties to another, whether you consult the judges president, or whether you afford Judge Hlophe an opportunity to address you. These are steps for you to determine and we would not presume to prescribe whom you are to consult, and how.
But whatever you adjudge to be legally the correct course, we most earnestly appeal to you to exercise your ethical and moral jurisdiction as the head of the judiciary to put a firm, principled and swift end to a public affront to the rule of law. You have the authority and the standing to remedy the situation. We do not, but cannot stand by indefinitely.
We should appreciate your intimation at your earliest convenience as to whether you intend taking action in the matter, failing which we shall have to consider doing so ourselves.
Yours sincerely
Johann Kriegler
Chairperson
4. Letter from Johann Kriegler to Chief Justice Mogoeng, November 15 2011:
November 15 2011
Chief Justice Mogoeng Mogoeng
Constitutional Court
Constitution Hill
JOHANNESBURG
Dear Chief Justice
JUDGE HLOPHE AND THE JUDICIAL SERVICE COMMISSION
A week having passed without any response to my e-mailed letter to you dated 6 November 2011, I must conclude that you are unmoved by the gravity or urgency of the considerations I have sought to urge upon you. No point will therefore be served by renewing our entreaties to you.
At the same time Freedom Under Law cannot fecklessly accept that the charges hanging over Judge Hlophe's head will effectively be ignored for at least another five months. We had hoped to have the mischief dealt with unobtrusively but will now have to adopt whichever alternative course seems most appropriate.
Yours sincerely
Johann Kriegler
Chairperson
Statement issued by Johann Kriegler, Freedom Under Law, Cape Town, November 18 2011
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