Hlophe cases highlight difficulty in holding judges to account

The problems within the judicial misconduct system have been made clear in the Western Cape judge president John Hlophe matter that is still far from the finish line after 14 years.

On Monday (25 July 2022) the Judicial Service Commission announced that it had taken the extraordinary step of advising the president to suspend Western Cape Judge President John Hlophe.

On the Friday of that same week, the Judicial Conduct Committee, a sub-committee of the JSC, sanctioned retired Constitutional Court Justice Johann Kriegler for calling Hlophe unfit to be a judge.

A curious observer wouldn’t be wrong in thinking that decisions involving Hlophe animate the judicial misconduct system. In a way, Hlophe’s case illustrates the institutional dysfunction of a system meant to discipline and hold accountable people who wield enormous power in our democracy: judges.

How so? The judicial misconduct system has been (and still is) ineffective in holding judges accountable when there are complaints filed.

The problem with the ‘system’

Some problems with the system are structural: not so long ago, there was actually no system to speak of. The JSC was dealing with complaints as they came in, within the confines of procedural rules unsuited to the task.

When a formal system with a standing, Judicial Conduct Committee (JCC) and judicial conduct tribunals were established through legislation, it was dogged by delays caused by endless litigation.

Certain loopholes in the system made it vulnerable to this litigation, from inception. These loopholes include numerous, convoluted levels of decision-making that are wide open to court reviews – even on unmeritorious grounds – but which nevertheless cause delay; the so-called ‘Stalingrad’ strategy.

The cases involving Judge Hlophe illustrate the structural weaknesses in the system perfectly.

Similarly, the JCC, meant to adjudicate complaints against judges is by law exclusively composed of judges still in active service, which means that their work on the JCC competes with their heavy workload in court. The Kriegler complaint illustrates this point. The complaint was filed in April 2021. Kriegler’s response and the complainant, Advocate Ngalwana SC’s reply were both filed in June 2021. Justice Zondi only gave the JCC’s decision at the end of July 2022, more than a year later. Justice Zondi is a judge of the notoriously busy SCA. This was a design flaw that should have been foreseen.

It makes infinite sense to have retired judges carry out this disciplinary task. Not only do they have the time to do the work but thanks to their long years on the bench, they have practical insight into judicial ethics and how judicial misconduct manifests. More importantly, it avoids the awkward situation where a member of the JCC has to sit alongside a fellow (sometimes senior) judge whom they are disciplining for misconduct.

The problem with the ‘process’

The judicial misconduct process is also frustratingly opaque. Until recently, the JSC did not publicly disclose annual reports on its operations, even though the law required that they report to parliament. As a result, there is scant information about the health of the judicial misconduct system, and even the published reports give little insight into the functioning of the system. There are also no year-on-year comparisons which would allow one to track the progress of complaints over the years. This is against the now well-established fact that serious misconduct complaints can take several years to finalise.

In addition, the JSC has no dedicated administrative staff available to receive and process complaints. Unlike countries such as New Zealand and the UK, where a dedicated bureaucracy deals with judicial misconduct cases. The JSC staff dealing with complaints are the same ones processing judicial appointment applications, which is in itself an enormous task.

It is important to note that the vast majority of misconduct complaints (upwards of 90%) are filed by disgruntled litigants who use the system as an alternative to appeals or reviews. These complaints are summarily dismissed, as the JSC is prohibited by law from investigating court judgments. However, the few cases relating to serious misconduct are clogging up the system. The cases involving Judge Hlophe illustrate the structural weaknesses in the system perfectly.

No system for dealing with judicial misconduct complaints

Chapter 8 of the Constitution vests the judicial authority of South Africa in the courts. Section 165 guarantees judicial independence, commanding the courts to apply the law without fear, favour or prejudice, and subject only to the Constitution. No person or organ of state may interfere with the functioning of the courts, section 165(3) says.

This latter part of section 165 formed the basis of the charge against Judge Hlophe, which set in motion the chain of events we’ve watched play out over the last 14 years. In May 2008, the 11 justices of the Constitutional Court filed a complaint with the JSC accusing Hlophe of gross judicial misconduct by improperly attempting to influence 2 of their number in cases that were then pending before the apex court, which involved Jacob Zuma and French arms manufacturer Thint.

The justices alleged that Hlophe, through a series of meetings with Justices Bess Nkabinde and Chris Jafta, had sought to persuade them to rule in Zuma’s favour. Shortly after the justices filed the complaint, they also issued a media statement. Hlophe denied the allegations and filed a counter-complaint, alleging that the Concourt justices were themselves guilty of gross misconduct by issuing a media statement before he could respond to their complaint. Additionally, he accused then Chief Justice and Deputy Chief Justice of pressurising Jafta and Nkabinde to file the complaint against him.

At the time of the initial complaint against Hlophe, the JSC did not have a system of dealing with judicial misconduct complaints, even though section 180(b) of the Constitution requires that they must.

The JSC therefore took a pragmatic approach of dealing with both the complaint and counter-complaint within the confines of its then rules. It conducted oral hearings and gathered statements from each judge.

Ultimately, the JSC decided, by a split-vote, to dismiss both the complaint and counter-complaint, finding that none of the judges had committed gross misconduct and concluding that the matter was finalised.

A minority of the JSC recorded in the final decision that, due to the mutually destructive versions provided by both Hlophe and the Constitutional Court justices, it would have been better to test the evidence through cross-examination at a properly constituted hearing where witnesses could testify.

Partly based on this minority view, Freedom Under Law took the JSC’s dismissal of the complaint on review in the High Court. The judge agreed with the JSC and dismissed FUL’s review application. On appeal, the Supreme Court of Appeal reversed the High Court’s decision, finding that the JSC’s decision to dismiss the complaints without first testing the evidence through cross-examination to be irrational. The SCA sent the complaints back to the JSC for proper investigation.

A judicial misconduct system is introduced

In the meantime, the ground had shifted. Several amendments to the JSC Act were made, and these ushered-in a new judicial misconduct system in 2010. At the core of this system would be a written Code of Judicial Conduct and a 6-member Judicial Conduct Committee chaired by the Chief Justice and comprised of his deputy and four other judges (two of whom must be women). The JCC would receive, investigate and adjudicate judicial misconduct complaints that would not be as sufficiently serious to warrant impeachment.

There would also be a Judicial Conduct Tribunal, which would be presided over by two judges and a practising lawyer, with a public prosecutor as evidence leader. It would investigate the most serious complaints of gross judicial misconduct, that could lead to impeachment.

Importantly, both the JCC and JCT would be run by judges themselves, in line with international best practice. However, both bodies would report to the JSC. Furthermore, all complaints now had to be submitted through an affidavit – gone were the days of a general complaint statement, with or without a media statement (side-eye to the CC justices).

The excitement that met these reforms was short-lived, however. Soon after the JSC referred the Hlophe complaint to the JCC and, subsequently to the Tribunal, Nkabinde and Jafta – the two key witnesses in the Hlophe saga – took the JSC to court demanding a reversal of the referral decision on the grounds of unconstitutionality. Their key argument was that the JSC could not decide a 2008 complaint under the new system introduced in 2010.

A full bench of three high court judges dismissed their application. So too did the SCA. The Constitutional Court declined to hear their appeal as most of the members of that court had to recuse themselves due to prior involvement in the Hlophe saga. The Concourt was therefore inquorate and could not entertain the appeal. Bizarrely, Nkabinde and Jafta applied for a rescission of that judgment, which was also dismissed.

Gauteng High Court Judge Nkola Motata also brought a similar court challenge against the JSC, which was dismissed, but nevertheless caused a delay.

Other gross misconduct cases in the system

When nearly a decade of this litigation wrapped up, the judicial misconduct system kicked into action in 2017. The Judicial Conduct Committee received a steady stream of complaints, and tribunals were sitting to determine gross misconduct cases against judges. In addition to Hlophe and Motata, four Gauteng judges (Preller, Phoswa, Mavundla and Webster) were being prosecuted in the tribunal for failing to deliver judgments on time (some of which had still not been delivered at the time the judges retired). A KZN judge, Anton van Zyl, faced similar charges.

The only trouble was that, except for the Hlophe Tribunal, none of the other tribunals did their work in public, which shows the opacity of the system. The JSC only announced the outcomes of some of those tribunals, but never the prosecution.

We know now that Motata, Preller, and Phoswa were found guilty of gross misconduct, but each got the proverbial slap on the wrist. Motata was fined R1 million, the others submitted written apologies. We do not know what happened to Webster and van Zyl, even though he was subsequently severely criticised by the SCA.

Just another bump in the road?

In April 2021, a tribunal found Hlophe guilty of gross misconduct. This was subsequently upheld by the JSC in August 2021, while also recommending his impeachment. As one would’ve guessed, that decision is now subject to further litigation in the courts.

In the meantime, other cases involving Hlophe have come up. In January 2020, Western Cape Deputy Judge President Patricia Goliath filed a gross misconduct complaint alleging that Hlophe assaulted a fellow judge, Mushtak Parker. In turn, Hlophe filed a counter-complaint accusing Goliath of lying. Over two years later, both complaints are still tied up in the JCC’s convoluted process, as is a related complaint by 10 fellow Cape judges who accuse Parker of lying under oath about the assault. All these complaints are very far from the finish line.

Although the JSC’s recommendation of Hlophe’s suspension is significant, it seems to only be a bump in a long road that has spanned all of 14 years, with more road still to come. The blame for these kinds of delays may correctly go to Hlophe and the other judges, but a large part of it lies with the JSC itself – and Parliament for legislating an unworkable system. The last decade has shown that the judicial misconduct system is overdue a revision and streamlining.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at UCT Law Faculty.

A version of this article appears in the Mail & Guardian (5 August 2022): https://mg.co.za/top-six/2022-08-06-hlophe-cases-highlight-difficulty-in-holding-judges-to-account/

Read more about judicial misconduct here: https://www.judgesmatter.co.za/conduct/