The question clearly divided the members of the JSC as Democratic Alliance MP Glynnis Breytenbach systematically asked all six candidates how they felt about a judicial officer remaining on the bench after a finding of gross misconduct “based on underlying dishonesty”.
Western Cape Judge President John Hlophe abstained from putting any questions to aspirant judges in his division interviewed by the Judicial Service Commission (JSC) on Friday after his participation was challenged from several quarters.
But a pending decision by the JSC that could lead to his impeachment for misconduct was ever present as candidates were questioned by commissioners about their relationship with him and their views on his continued presence on the bench.
It clearly divided the members of the JSC as Democratic Alliance MP Glynnis Breytenbach systematically asked all six candidates how they felt about a judicial officer remaining on the bench after a finding of gross misconduct “based on underlying dishonesty”.
All candidates assumed the question to refer to Hlophe — even though Breytenbach insisted she was posing it in the abstract — and responded with a measure of reluctance.
Advocate Nobahle Mangcu-Lockwood noted that due process needed to be followed and that the matter had not reached finality because the JSC still had to decide whether to endorse the findings of the Judicial Conduct Tribunal against Hlophe. She pointed out that if the JSC agreed with the tribunal, eventual impeachment would still be up to the national assembly.
Breytenbach asked what the purpose of suspension was, in her view.
“The process of suspension is also up to the commission and then the minister as I understand it … the purpose is the process,” replied the candidate.
Economic Freedom Fighters leader Julius Malema asked to be allowed a follow-up question, “because this question has been troubling us”, and wanted to know what should prevail — political expediency or due process?
Mangu-Lockwood replied that process must be followed in terms of the Judicial Service Commission Act and the Constitution, but that politics would by nature enter if the matter were to reach parliament.
Malema then asked what it would do to democracy if due process was flouted.
“It does violence to those things and I think if those were the circumstances somebody might well run to court to force them to follow due process,” the candidate replied, with considerable prescience.
Daniel Thulare, the chief magistrate of Cape Town, responded to Breytenbach’s question by saying his candidature for a seat on the bench implied that he respected all legal processes and hence he had no further comment.
Both Mangcu-Lockwood and Thulare are considered strong candidates but the latter was thrown a curveball by Chief Justice Mogoeng Mogoeng when he played a voice clip in which Thulare sang a song associated with political campaigning by President Cyril Ramaphosa and said the judiciary was “bleeding and rudderless”. In the clip, he went on to call for Supreme Court President Mandisa Maya to replace Mogoeng, who retires in October.
Thulare said, to his mind the song was “sung across political lines” but also outside any political context. He said the voice clip was leaked, potentially to embarrass him, because it was part of an internal discussion in the Judicial Officers Association of South Africa.
On Thursday evening, the JSC had responded to pressure to move for Hlophe’s suspension by Ramaphosa, by making plain it would only consider this once it has decided whether he is guilty of gross misconduct.
It did so in reply to a letter of demand from Freedom Under Law (FUL). The civil society organisation, the Cape Bar Council and Western Cape Premier Alan Winde separately approached the JSC in a bid to avert Hlophe’s participation in the selection process, a fortnight after the tribunal recommended that he be impeached.
The JSC is due to meet on June 4 to mull the findings of the tribunal and decide whether he is guilty of misconduct in terms of section 20 of the Judicial Service Commission Act.
“Once that decision has been made, the JSC will consider whether or not to advise the president of the Republic of South Africa regarding the suspension of Hlophe JP in terms of section 177(3) of the Constitution,” JSC secretary Sello Chiloane said in the letter to FUL.
Hlophe is contesting the tribunal’s findings that he breached ethical principles and codes by discussing a pending constitutional court matter involving the corruption charges against Jacob Zuma with justices Chris Jafta and Bess Nkabinde in 2008.
He said last week the findings were wrong in law and in fact, and accused the tribunal of bending to the “partisan” views of FUL chairperson retired justice Johann Kriegler.
In Friday’s sitting, Hlophe courteously disclosed that he had a close friendship with advocate Bryan Hack and had known attorney Matthew Francis since he was a student. Both candidates were subsequently grilled on how the misconduct saga affected the bench.
Francis described suggestions that the division had been severely compromised by the controversy surrounding Hlophe as “a shrill hysteria”, which did not match the reality of judges quietly and ably carrying on with their work.
He was bluntly asked by Malema what he would do if Hlophe prescribed to him how to decide a matter.
“I would report the matter to the JSC,” Francis replied without hesitation.
Hack disclosed that he was a close friend of Hlophe’s wife, Judge Gayaat Salie-Hlophe, and had supported her when she left a prior, abusive relationship. More recently, he said he had taken a day’s leave from the bench to act for her in a maintenance dispute on school fees with her former husband.
This led to a complaint to the Legal Practices Council because Hlophe did not have written consent from the minister of justice to excuse Hack from his duties on the bench.
Hack conceded, in reply to questions from Mogoeng and Justice Minister Ronald Lamola, that he had not asked Hlophe whether he had permission and believed it would have been impertinent of him to demand a copy of the required letter from the minister.
“I do not recall him specifically saying he had the minister’s consent.”
He proceeded after Hlophe told him he had written to the minister and that he was free to appear on his wife’s behalf. Hack said he clearly recalled that Hlophe’s words were: “Everything is in order, you can go ahead and apply your mind to appearing tomorrow.”
“I accepted his word,” said Hack.
Commissioners Jennifer Cane and Griffiths Madonsela, both senior counsel, asked Hack whether his relationship with Hlophe and his wife would not be unseemly in a division widely regarded as torn by turmoil around the couple.
Cane ventured that Hack’s appointment risked creating a perception that he was part of “the faction of which the judge president is part on that bench”.
Madonsela asked: “Mr Hack, don’t your relationship or your relationship with the JP, the JP’s wife and your familiarity with that family, the extent to which you have gone out of your way to make yourself available to assist them with their affairs, so much that it had to give rise to a complaint of you taking time out of your acting position to assist them, is such a clumsy affair that it should dissuade us from appointing you as a judge?”
Hack disagreed: “The simple honest answer is no. I believe it was my duty to appear on that day for those two children whose lives were in peril. It was not something that I did lightly. It was something that was very important.
“The children risked being barred from returning to school because their school fees had not been paid by Salie-Hlophe’s ex-spouse,” he said and added: “I have done no wrong.”
Hack stressed that if he were appointed he would not be persuaded to lend any further assistance as a counsel or as an advocate. Hack was also questioned at length about his membership of the Conservative Students Alliance in the apartheid era.
The third candidate, former Webber Wentzel partner Selwyn Hockey, was asked whether he had any hand in the letter of demand the firm drafted this week on behalf of FUL. He said he was not aware of it because he had resigned last year.
The Cape Bar Council had asked the JSC to postpone Friday’s interviews because it believed the seriousness of the tribunal’s findings against Hlophe could taint the process. FUL, in its letter, asked whether it would be allowed to make presentations to the JSC on June 4, when it considered the matter.
According to Chiloane’s response, only the judge president will be allowed to do so.
The situation regarding Hlophe is unprecedented and, given that the handling of the complaint has led to litigation over the past 13 years and that there is likelihood it could return to court, the JSC’s approach could be read as an attempt to avoid further delays in this regard.
The JSC in March received a recommendation from Judge Nambitha Dambuza that a tribunal further investigate the dispute between Salie-Hlophe and Deputy Judge President Patricia Goliath, who last year brought a misconduct complaint against both Hlophe and his wife.
Dumbuza said the dispute appeared to be central to the public breakdown of trust between Hlophe and his deputy.
The JSC is yet to deliver a finding on Hlophe’s challenge to its decision that a tribunal be established to investigate Goliath’s complaint against him.
After deliberations, Mangcu-Lockwood and Francis were recommended for appointment.