Embattled Western Cape High Court Judge President John Hlophe has been suspended pending impeachment proceedings against him for gross misconduct. The suspension has been welcomed by Freedom under Law (FUL) which has previously expressed serious concern that the suspension of Judge Hlophe has been delayed despite complaints that go back more than 14 years. Speaking for FUL, Jeremy Gauntlett, SC, who is also a KC at Brick Court Chambers in the United Kingdom, told BizNews that they welcomed the suspension of Judge Hlophe but expected that there could be more ‘lawfare’ from the embattled High Court Judge President. A two-thirds majority in the National Assembly is required to remove him from office. – Linda van Tilburg
Extracts from the interview below
Judge Hlophe’s suspension is long overdue
Freedom under Law was set up for rule of law issues as an independent NGO some 12 years ago and very much at the time of the original complaint against Judge Hlophe, which shockingly has dragged on for all these years. It’s to the credit of the recent Judicial Service Commission, as recently constituted, and to the credit of the presidency, that there has been this recent movement, but not without considerable litigation pressure and communication from, inter alia. Freedom under Law. Justice Johan Kriegler, a retired Constitutional Court judge, is the chairman of Freedom Under Law. I’m one of the directors and I speak today in the place of Justice Christopher, because he’s unavailable. But we welcome this long delayed, overdue welcome.
The Judicial Service Commission was very slow in dealing with Judge Hlophe
Well, the problem lay in the first instance with the Judicial Service Commission in not moving with vigour in what is ultimately a very simple situation, and that is that if you are the head of any kind of institution, in this case, one of the heads of South African courts – the Western Cape High Court – and there are serious pending allegations against you, in the current political language, step aside. You should not continue to act as a judge, take decisions, participate in the appointment of other judges. The JSC was very slow to deal with the situation and when ultimately it did deal with it, dragged if I may put it this way, kicking and screaming there – when it did deal with it, then the issue of suspension arose. It made a recommendation to the president in July, and the president has delayed from July to the day after the parliamentary votes and the day before the ANC’s conference to deal with the matter. All we can say is that we welcome the step and are sorry it took so long.
There could be more ‘lawfare’ from the embattled Judge President
I think the short answer to you is that in accordance with what you’re talking about, there is likely to be more lawfare, as it’s called: a deliberate delay through litigation by, in this instance, the affected person. That has been the pattern of behaviour before and it is likely to happen again, but in fact the suspension should be taking place immediately. What will be very, very interesting to see is if in fact the judge president vacates one way or the other the office in which he has physically sat for nearly 20 years, or whether he attempts to physically continue to occupy it, resulting in other legal steps. It’s impossible to know at the moment. The decent thing to do would be at last, to stand down, effectively, go gardening, leave and await the next step, which is the institution by Parliament of impeachment proceedings, acting on the recommendation of the independent body, the Judicial Service Commission.
Seeing a political motive behind the judge’s removal is a retaliatory smear
As was said in relation to Lord Denning, his supporters would say that. The simple fact is that an autonomous body, the Judicial Service Commission, not any kind of political body, took the decision that he had to be suspended just as it took the decision prior to that, as slowly as I described but it took it – that he is guilty of serious misconduct, such as to warrant impeachment proceedings. So, it would be a retaliatory smear to say that what has happened to those independent bodies and now the president himself is in any way political. I should say that Justice Hlophe is devoid of any history of personal activism in relation to any liberation movement or otherwise. In recent months, he has however, started to claim to be an activist in what he’s done. So there is really no truth in the statement that these steps follow any kind of politically tainted procedure.
Judge Hlophe has done ‘considerable damage’ to image of SA courts
Sadly, I think that he’s done some considerable damage. I think at the same time, it is known that overwhelmingly the judges continue to be independent, committed and hardworking. One knows that it has been a considerable trauma for those who have been obliged to continue in the same court with him, and that up to ten of his own judges have signed a letter in past times objecting strenuously to things that he has done. His own deputy judge president ended up laying a complaint with the JSC. So, he has done harm, a great deal of harm and it is the first time in the history of the country that a head of a court has been suspended by the head of state.
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