The ongoing war of attrition by Western Cape Judge President John Hlophe is getting uglier by the week. So much so in fact that in the Sunday Times this week former Democratic Alliance leader Tony Leon suggests that Hlophe is some sort of fifth columnist who is destroying our justice system from within.
There is merit in Leon’s argument.
In order to simplify it for my readers I’m cutting it down to the barest of bones. Those of you who wish to read further on the subject may scroll back on this site I’ve covered this issue extensively.
What it amounts to is this:
The charge against Hlophe is that he approached certain judges to influence their decision in a case involving the president FULLSTOP
The charge against the JSC, who are tasked with disciplining judges, is — in essence — that they went public before formally charging Hlophe.
Subsequently the Hlophe legal team has bombarded the justice system with technical points and blown up every side issue they can while using the destruction of the reputation of our judges as one of the main focuses of their attack.
In a nutshell Hlophe’s defence is attempting to cloud the issue and taking everyone’s eye off the only question that need concern us here:
THAT IS what do you do with a judge who for personal gain tried to influence the decisions of other judges?
President Zuma in his legal battles was concerned with a bitter factional war within the ANC. Hlophe is involved in a selfish war occasioned by his own conduct designed to curry favour.
Accordingly the solution must be as follows:
The matter must be referred by the JSC to an independent court outside of the Western Cape.
Thee judges must be appointed by the minister of justice to deal with this case which is embarrassing our judiciary and our country.
If Hlophe has an action for damages or defamation let him bring those separately after this issue has been resolved. Damages can only be calculated once this case has been decided anyway.
You can never, ever allow a judge to try and influence other judges in a matter. That is the cardinal sin.
If Hlophe did this then there can never be a place for him in our judiciary.
The rest of the side issues can be dealt with in the ordinary course. Chances are that once the main issue has been dealt with the balance will be resolved very quickly.
And where does Tony Leon fit in all this? What a bloody oportunist he is!
this is nothing other than a mere political power driven percecussion…hlope is being used as a scapegoat. there’s a bigger fish outhere to fry. keep fishing
Nice try Traps, but to the man on the street it looks just like the Zuma case except Hlophe does not have as much personal power to make the charges go away.
Zuma’s ‘war’ in the courts was selfish to the extreme, gambling the reputation and standing of an entire nation…
Wow…. now why couldn’t someone else sum this up so succinctly sooner? I have to say Traps that I may not like your politics, but you would have my vote for President any time just for sheer common sense.
I’m afraid you have it all wrong. What’s good for Zuma is good for everybody else, that’s what equality before the law means.
“Bitter factional wars within the ANC” are no more the proper concern of the justice system than a “selfish war occasioned by his own conduct designed to curry favour.”
This genie is out the bottle now and we can look forward to much of the same from all shysters and opportunists.
Hi Traps.
Although you do generally write in a manner that leads me to think carefully about the points you bring to the table, for once I am in full agreement with you from the outset.
An example of what a judge may not do has been provided, and unless the action is squashed, in a stern and efficient manner, others will soon copy his terrible example!
Consider the mindset at work here:
They spend hours reading what other people have done, and how those judges have judged the actions of others, and use these examples to make up their minds.
We have a moral responsibility to prevent the judges from feeling these kinds of actions are acceptable!
Thank you for putting it so clearly!
Exactly. Defense by attack, smoke and mirrors does somewhat cloud the issue. I am interested to see how the South African judiciary will deal with this, and even more interested to see how the authorities will help them.
@ Phillipa. Tony Leon was merely commenting on it in a newspaper article. Nothing opportunitst about it. He’s always worth reading. I think his superb use of the language, his clarity of thought and knowledge of politics and history could eventually make him a better political commentator than he was a leader of the opposition.
Philippa….”op(p)ortunistic”….how do you arrive at that conclusion. Tony Leon fits in the same way you do. Are you suggesting that people you do not like are not entitled to an opinion.
Siphiwo….”percecussion” meaning that you propose using dynamite to catch the fish
I suggest he fits into it all as a columnist for the Times. You did click on the link, oh dear, you did know it was a link that could be clicked on didn’t you? That might have explained where he fit into it.
Is ‘percecussion’ a percussion instrument with which you persecute?
If he’s guilty he should be out, actually, even if he isn’t guilty he should be out. A JP should have the professions respect, he didn’t have it before this incident, he certainly won’t have it afterwards. Nothing to do with race, but simply not the right man for the job.
There is no merit in Leon’s argument because he is completely subjective. Tony Leon is a politician who is well known for his anti-transformation stance as epitomised by the “fight-back” campaign and his abandonment of liberal ideals ( and against the constitution) by supporting the death penalty.
It cannot be said that it is OK to discredit a judge president and still claim that it does not negatvely impact on the overall credibility of the judiciary – simply because it is judge Hlophe that Tony Leon does not like.
In this whole saga there is no “smoking gun” evidence that is not disputed that can be used beyond reasonable doubt to say who is telling the truth. Only Hlophe and the two constitutional court judges that he spoke to, know the truth. The other judges, including the Chief Justice never talked with Hlophe directly.
So it becomes: “he said and he meant”. Recall, some of the conversations were in Zulu which is rich in idioms. What is thought to have been said by Hlophe that” Sithembele kini or “We put our faith in you” is open to many intepretations. Only the person who used that phrase can explain what he meant.
The constitutional court judges and Tony Leon think that they would resolve the question of whether Hlophe meant to influence the judges by intepreting and applying one connotation of a Zulu idiom and disregard other interpretations and using their status and numbers to get this accepted as the “truth”.
Who is Tony Leon? Talking about opportunists, he is one! Your post is just as hypocritical. Hlophe got a right to pursue all legal remedies to clear his name. The judges at the SCA and Concourt are not Gods. As a lawyer, Traps, can you convincingly tell us that judges don’t talk amongst each other when dealing with different intricate legalities? It may very well be that Hlophe did discuss the case with the two judges concerned, but in what context? You have to accept that our judiciary is currently heavily divided on colour lines! Check out Judge Willis minority judgement in the case that Hlophe won in the South Gauteng high court!
Phillipa: how is Tony Leon an opportunist? an opportunist of what? He’s a retired man now – he has nothing to gain!
Play the ball and not the man – discuss the issue at hand: What do you do with a judge who tried to influence others for personal gain? Heck, its right up there with treason in severity! The judiciary is sacrosanct, and when a judge uses his position/influence/finances to sway the opinion of others – what does that say about our justice system? Esp if not only the allegations were true, but if they were accepted – what if Hlope (hypothetically) DID manage to sway a judge or two, or three…
No matter if its Tony Leon or Oscar Pistorius or the man in the moon who writes about it: the end result is the same: o fok! This thing is huge, and the masses cry foul ‘coz a retired opposition leader wrote soemthing a lot of other people wrote before? Because there are “bigger fish to fry?” Jeez, look at the implication of the country, don’t shoot the messenger!
@ Siphiwo
Irrespective of whether or not there are other ‘fish to fry’ the fact remains that a senior member of our judiciary has been accused of subverting the judicial process for personal gain. Until that matter has been cleared up there is a stain over the due process of law currently operating within South Africa, and that must be cleared up as fast as is possible.
@ Phillipa
He is the former leader of the main opposition party, and as such, one hopes he is somebody with a strong working knowledge of this country’s constitution. That he is now writing a column for one of our broadsheet newspapers in which he is stating his well-informed opinion about an issue that is causing a stain over our constitutional rights is laudable, not opportunistic.
But that’s just my opinion… ;o)
Thanks Traps – keep it coming thick and fast.
Definitely agree with your article and what needs to be done. Have to say it’s an interesting choice of title though – it sounds like you are implying it’s ok that Mr Zuma gets away with such behaviour.
Can we truly separate Hlophe’s case from JZ’s? The judiciary doesn’t need Hlophe to be tainted, it already got its hands dirty with JZ’s case where it was concluded there was prosecutorial misconduct.Why should we dismiss that possibility when it comes to Hlophe’s case?
Mbenge Ziko
It’s unfortunate Traps that you let your personal feelings about Hlophe to cloud your judgement. As far as your personal interest in the matter goes, the Constitutional Court judges can do no wrong, hence Hlophe should just bend over and let them have their way with him. Why prescribe to Hlophe on how to fight his battle and yet keep silent about the JSC and the Constitutional Court judges battle plan. I wonder why you conflate the constitutional court with it’s judges. The problem there has nothing to do with the constitutional court as an institution but more to do with the current presiding judges. Hlophe is fighting the judges of the constitutional court not the court itself.
@Gerry; No need to get worked up. I never said that the issue he was raising was irrelevant. Of course Hlophe should be dealt with. But Leon is such a fine one to speak. He must wipe he speck from his own eye before opening his big mouth about matters beyond his scope. Is he a lwayer? Indeed no. He is a negrophobe and since there’s he can’t find a vent for his pet hate(s), black people in general and black politicians in particular, he tries to guise his inane drivel as concern over constitutional matters. He must get a life, or help Zille mop up the mess he left in the DA.
@ Traps
I reckon Judge Hlophe is merely taking the advantage of the ConCourt and its JSC because for a moment they took eyes off the ball. The point is, certain issues are internal and to make them public it means as an organization or any institution your willing to be decisive and demonstrate leadership!
The entire ConCourt failed to act decisively on this matter, the Hlophe issue was an allegation with NO concrete prove at all(except statements from two judges,we need a solid evidence otherwise,deal with the matter internally to avoid humiliation).Then how do you make it public knowledge, when there are elements of uncertainty related to the entire case?! The excuse is,Chief Justice and his team wanted to protect the integrity and demonstrate transparency,but this is lame,indeed!
Hlophe might be wrong,however processes ought to be followed and respected!
Yes,indeed lets deal with the issue at hand,finish and klaar! Phela,the Hlophe thing is on the brink of reducing our democracy to Mickey Mouse!
Oh, and do excuse my spelling will you!
@Julian:”Tony Leon was merely commenting on it in a newspaper article. Nothing opportunitst about it. He’s always worth reading. I think his superb use of the language, his clarity of thought and knowledge of politics and history could eventually make him a better political commentator than he was a leader of the opposition”.
I disagree that his use of language is “superb” but I must say that he can be better at anything, anything other than being the “leader of the opposition”. In fact, he would even make quite a delightful butler or tea-man (if, say, we were still in medieval times in Europe, before colonislists went to Africa and elevated their station and class). Otherwise as a politician, he was rather lousy, obsessed with fighting b(l)ack(s). He must take a cue from Helen Zille; she is ten thousand times a better leader than Leon.
@anton: Leon is not someone I don’t like. It’s just that he needs to stop poking his nose where it doesn’t belong.
@Damian: Defend him all you like. He is your idol after all. Hlophe’s case should be dealt with in court (by “court” I don’t mean the court of public opinion as it seems most judicial matters in this country are determined). Just look at “Judge” Chris Nichols, basing his judgement on a newspaper piece. Was he that pressed for time that he couldn’t be bothered to consult his books before going to court? How shameful!
Why did the JSC go public before formally charging Hlophe? What was their motivation? This selective finger-pointing is nothing but an attempt by the enemies of president Zuma, who are prepared to go to any lengths to facilitate his crucifixion, to disguise their not-so-hidden contempt of the new order and nostalgia for the period when their voices could not be challenged.
The eagerness with which Zuma’s detractors are quick to believe every allegation against him and therefore, pass judgement, is laden with dishonesty and sheer refusal to come to grips with the reality of the change that has replaced the chauvinism of the reactionary forces that are bitter at losing their grip on power!
Problem is, while this solution is sensible, it does not seem to me to be legal. Therefore we cannot do it.
We have to grit it out and follow the law. Or else, once we solve one problem with extra-legal means, then all other “problems” are open to this approach (and what would then be wrong with the dropping of charges against Mr Zuma?).
Why harp on Tony Leon? I though that the subject is Hlophe and his legal tacvtics to avoid blame. Getting Leon mixed up in this was a mistake. The phrase “judges are not Gods” is by now a well-worn propaganda phrase by the ANC which, of course, is supported by the Bongos and his ilk.
Good grief – Zulu idiom can have nothing to do with it!
Hlophe barged in on the judges, who told him they could not and did not want to discuss it, but he ignored them.
The legal question they were deciding was the question of “priviledge” which is not too complicated – and was in fact TOO easy to find AGAINST Zuma.
What complicated argument Hlophe had in mind could be fascinating.
The REASON for all the delays is that Hlophe is guilty and he knows it. He also knows it is a crime as strong as treason for a judge. So he is trying to discredit the system and the judges whom he know have no choice but to find him guilty of misconduct.
As for damages – he could still win damages and get R1. He wqould have to prove his reputation was damaged – and among his fellow professionals it already stunk. There was nothing to dsmage as his reputation was tarnished from the Oasis case anyhow.
it all comes down to trust, doesn’t it? the con court judges would not have even farted the thought if they thought it didn’t have substance. that’s why thy’re there. surely.
i know who i trust, and who i don’t. those i do i listen to intently and those i don’t i sit back, kick my shoes off and have a laugh. trouble is i don’t know what i’m laughing at anymore.
Stick to the issues here and set aside the personalities involved.
The judge-president sought to influence other judges. He’s specifically not allowed to do that. So he’s in the wrong.
It doesn’t matter one iota who the person is who happens to point this out. I doesn’t matter if it’s a he or a she; black or white; rich or poor; young or old. It doesn’t matter whether the critic likes the judge or despises him, or whether that critic is a priest, a retired politician, a used-car salesperson or a labourer.
What DOES matter is that this critic is 100% correct. Judge Hlophe may NOT attempt to sway the views of any other judges.
But he did. And in doing so, he radically overstepped the boundaries of his office. It IS a sackable offence, and parliament ought to sack him.
It’s that simple.
Siphiwo, don’t be in such a rush to write off the judiciary and replace it with a partisan old-boy club that favours those who can afford it. Undemine the law at your own peril. If a loved one is raped and murdered you wouldn’t want to use a legal system like South Africa’s to get justice, would you? Wouldn’t you rather know that the people responsible for justice are honest, uncorruptable and …………well, not Jonh Hlophe.
Hlophe has every right to exhaust all existing legal revenue in this case. The judges should have known better that due process is as important as substance in these matter, running to the media was incorrect. He might have gone to far by suggesting what is alleged he had suggested to ConCourt judges. But we all know that the real dislike of him stems from his fight for judicial transformation in the Western Cape. No matter how people intepret it this has political connotations on it. The Constitutional Court itself has failed to support the transformation of the judiciary. When politicians intervene there will be an outcry from those who want things to remain the same.
Yes, the problem is simply that you, Mr. Trapido, are claiming that the law should apply differently to Zuma as opposed to Hlophe. In both cases the protagonists struggled frantically in order to escape the presentation of criminal charges in a courtroom which would have led to their ruin.
Hlophe, of course, is a major supporter of Zuma and was acting in Zuma’s interests when he tried to bribe or bully the Constitutional Court to find in Zuma’s favour as a part of Zuma’s struggle.
There are connections here. You are behaving like the TRC members who were happy to allow the death-squad operatives to go to jail while letting the apartheid generals and politicians off the hook. Instead, as has been rightly pointed out, if Hlophe has to go to trial, so, properly speaking, should President Zuma.
They had butlers in medieval times? Must be the new history books eh…
He’s not Chris Nichols, Phillipa. He’s Chris Nicholson.
@Lyndall Beddy
You fantasise of being a judge. The guilt and innocence of an accused can only be decided in a court of law. Your opinion has no bearing whatsoever on such a decision. Calm down, you’re moving like an out-of-control train leaving chaos in its path to nowhere. You seem to have an opinion on anything. Frankly, most of your opinions are baseless, uninformed and simply ridiculous.
The Creature
And how would the ANC have got control of the country without a negotiated settlement,including deals re generals and politicians?
Not with an “armed struggle” – that is for sure!
This “armed struggle” myth is becoming a bore. The ragged bunch of MK sat around camps spying on each other and never fought a single battle.
And they seem to have spent the last 15 years still spying on each other!
@ Phillipa
On what basis do you decide that Tony Leon “needs to stop poking his nose where it doesn’t belong.”
How would you you like it if I told you that your “nose does not belong in this debate” and asked you to keep your opinions to yourself. You would quite rightly think that I was being ridiculous. South Africans have the right to express their views on matters of national interest. It is called being part of an effective democracy.
Another thing, some time ago you dished out accusations of xenophobia but simply refused to explain yourself when challenged. Now you accuse Leon of being a negrophobe. You will no doubt ignore me again, but would you care to tell us all on what basis you accuse Mr Leon of being a negrophobe.
White Judges against whom compliants to the JSC have benn made for doing excatly what Hlophe is alleged to have done have had no action taken against them.The Supreme law states that “any conduct in conflict with it is invalid”. Willis J should be brought before the JSC for the arrogance of his racist cultural references in his judgement wherein he referred to a,”cultural tradition that views with disdain the inconveniencing of others”, is quitebreathtaking in its arrogance.How a Judge who has taken the oath of office is incapable of
understanding how such a statement is in conflict with his oath of office is of concern.
Perhaps the learned judge was incorrect when he claimed never to have missed a professional appointment as it appears he quite clearly missed the one when conduct in conflict with the constitution was discussed.
Be that as it may the irony cannot be lost of two Judges on different sides of the legal divide arguing about constitutional conduct. Surely the Judge fighting on the side of the Bill of Rights deserves our support. Herein lies the difficulty of the ANC which is forced as government to live alongside a Judiciary wherein some appear to refuse to accept the spirit of the supreme
law and therefore our rule of law. A lot like power sharing with Mr Mugabe.
Phillipa, Tony Leon is a lawyer. Michael Trapido is a lawyer. Phillipa Lipinsky is not a lawyer.
Your skills in self-humiliation are visible to everyone else but Phillipa Lipinsky.
Traps
Fully agree with you that this issue is causing SA and the Judiciary much damage and needs to be settled sooner rather than later.
Many commentators will draw similarities between the tactics used by Hlophe and Pres Zuma in their legal wranglings – ie avoid dealing with the core issue – are you guilty of the charges laid against you – yes or no?
Judge Hlope either tried to improperly influence the three Judges or he did not.
If he spoke in riddles or idioms then the possibility exists that his words were misinterpreted – even by all three Judges.
I imagine the key issue was what was the intent of his discussions?
Traps – you says that “President Zuma in his legal battles was concerned with a bitter factional war within the ANC.”.
Surely he was concerned with defending criminal charges that were laid against him by the state – most of the evidence against him had been tested and accepted in the Shaik trial – and upheld on appeal.
The “bitter factional war” was surely the selective use of whom the state gets to prosecute for their part in the arms deal – what about the late Joe Modise, Thabo Mbeki,Terror Lekota et al?
I agree with the ANC that the Judges are not gods – political leaders throughout history have loaded the judiciary with “left leaning” or “right leaning’ judges to suit their political ends.
Phillipa – Tony Leon is a qualified lawyer – do some research, dear!
Bongo – Hlophe is using TAXPAYERS money not his own!
Traps, Mugabe has Tomana, and Zuma will have his Hlophe. My bets are that Hlophe is going to replace Pius Langa whether we like it or not.
Western-styled justice systems can never fit with Africa’s culture of rule by dictatorial tribal chieftains. Get used to it. We don’t really need you lawyers and judges … except as window-dressing for the IMF and billion dollar aid organisations.
Mzimkhulu
I listen to the experts and read the facts.
You explain to me how “priviledge” can apply to 34 unopened boxes of Shabir Shaik’s records found in the office of Zuma’s attorney (who was NOT Shaiks attorney and which boxes had not even been opened) ?
Justin
I listened to Judge Willis being interviewed. He said he disagreed with the other judges and the rationale thst they wanted to avoid an appeal. I also read Sarjeant at the Bar who says there could be an appeal? So I am getting confused. How can I find the Judgement on Google to read for myself?
General: have I missed something or are there plenty of inaccuracies in this article?
It was the ConCourt who went public with the complaint (not the JSC). The JSC is acting on the CC’s complaint, the facts of which are not disputed (Hlophe JP arguing that, it appears, since discussions about cases with other judges is normal, nothing can be read into his behaviour).
Hlophe JP’s counter-complaint against the ConCourt is in respect of an alleged infringement of his rights (press release) which trumps the CC’s desire to protect its reputation. Hlophe has also launched complaints against the JSC relating to his whole “sick note” debacle and accused the JSC of bias.
Further, involving the Minister of Justice in this even further infringes on the separation of powers. We have a CONSTITUTIONAL democracy. The parliament is not sovereign and not everyone answers to the government of the day. I doubt most people are even aware of the counter-balancing roles that the executive and legislature are supposed to play in SA anymore.
Lyndall
You can get a copy of the judgement from SAFLII or go to south gauteng high court Johannesburg, case number 19006/09.Please be warned that the section on Humpty dumpty is not for racially sensitive viewers