Ex Constitutional Court judge Johann Kriegler on why Hlophe is not untouchable

Johann Kriegler is a retired justice of the Constitutional Court and an advocate of the Johannesburg bar. Kriegler joined the BizNews Power Hour, sharing his views on Judge Hlophe and the urgent need for his suspension by the Judicial Service Commission. 

Johann Kriegler on South Africa:

We’re in a lousy place, but we were in an infinitely worse place before. We dropped a lot of the catches since 1994, but we’re still in a better game, no doubt.

Johann Kriegler on Freedom Under Law:

Freedom Under Law is a civil society organisation. We’re about a dozen lawyers in this country, Zimbabwe and in Namibia who do things to promote the rule of law. We’re particularly interested in the administration of justice in the countries. We also have a presence in Botswana, but that’s a stable society. We really don’t have concerns there. We have concentrated on the state of the judiciary, the courts and much of our effort has been focused on Judge President John Hlophe – even before his selling into the constitutional court and hi’s lobbying for his patron, Zuma.

He was a doubtful character already. Others will recall going back to his taking money out of the counter from a financial institution that was doing business in his jurisdiction’ he got a very light slap on the wrist nearly 20 years ago. When we hit the headlines with his lobbying on Braamfontein Hill, he was no newcomer to us or the newspapers.

Johann Kriegler on Judge President John Hlophe:

In the case of Judge Hlophe, they first of all – way back – tried to bury the thing. They came to the conclusion that he said ‘A’ and the two judges that he had talked to said ‘B’ and who could decide? So, they closed down the show. We then took that to court – but we missed out in the first instance. We then took it on appeal. We got an order saying the Judicial Service Commission cannot duck its job. Its got to deal with the matter.

That was way back, 12 or 13. It then got stuck at the appointment of the tribunal. The procedures that had to be followed – for some reason or another – with, at times, the active agency of Judge Hlophe, the matter never got to a formal hearing until December last year. The tribunal sat, it heard evidence, heard the judges and it heard Judge Hlophe and it came to a conclusion. It came to the conclusion that he had, in fact, tried to persuade the two judges to change their judgment in a case involving, at that stage, Mr Zuma (not yet president).

The case, actually, that was due to come up against him next month – which seems is going to be postponed again because his lawyers have left him. That was the case that we said should be pursued. It has now been pursued. The matter is before the Judicial Service Commission again.

Johann Kriegler on Hlophe still doing his job despite being found guilty of misconduct:

There is a mechanism to suspend the judge – against whom such a proceeding is going. The Judicial Service Commission (for some reason or another) is not prepared to recommend to the president that he be suspended. We said that should have been done a long time ago – at least at the very latest, now that we’ve had this finding. You say he is doing his job. He’s the judge president. He is the man in control of a division of the High Court.

His influence, his presence and his governance of the division is extremely harmful to the administration of justice. To have the senior judge in the oldest division of the High court living under this kind of indictment is extremely embarrassing to all concerned. They should suspend. They should have decided it [and] that we are going to press that they do deal with this issue now.

Johann Kriegler on what needs to be done:

A lot of public pressure. Public indignation and public pressure on public representatives. The Judicial Service Commission has become politicised – although the members are there as representatives of parliament, not as members of political parties. Certain politicians have been playing party politics there. They should be put under public pressure to realise that their job, under their oath of office, is to deal with this matter calmly [and] rationally on its merits.

Is it indeed acceptable that a judge could try to bully two young junior judges of the Constitutional Court in favour of his political sponsor? We say it’s defeating the ends of justice. It’s extremely serious. We wish the members of the commission to be made to realise that the integrity of the judiciary of South Africa – on which depends on the integrity of the constitutional democracy that we are running – is in jeopardy. If you play politics, when one man who happens to be politically connected and has friends in high places, steps over the traces and is not dealt with sufficient firmness and expeditious judgment quickly.

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