Cape Judge President John Hlophe is seen at the Judicial Service Commission preliminary hearing into his alleged attempts to influence a judgment relating to President Jacob Zuma in Johannesburg, Thursday, 30 July 2009.
JOHANNESBURG – Judge John Hlophe has been a polarising figure in the legal community long before he was accused of trying to influence judges of the Constitutional Court.
In some circles, his name has become synonymous with the discussion around transformation of the South African legal system and the Bench. In others, he is a symbol of greed.
When Hlophe became one of the first black judges to join the bench in 1995, at just 36 years, he was considered a legal prodigy.
He was the first judge to join the bench directly from academia. He had lectured law at the University of Transkei. In 2000, he became chief justice of the Western Cape High Court – one of the youngest people to become head of a court.
In 2004 and 2005, Judge Hlophe’s troubles began. He was accused of making derogatory comments, allegedly calling attorney Joshua Greeff a “piece of white s**t”.
Judge Hlophe was also accused of saying that he allocated a case involving the Mikro School to Judge Wilfred Thring because Thring would “f**k the case up”, forcing to the be resolved on appeal.
In 2004 a report on racism in the Western Cape High Court, compiled by Hlophe, caused major controversy at the court and Cape Bar.
In the report, Judge Hlophe named deputy Judge President Jeanette Traverso, former Cape Judge President Edwin King and senior advocate Jeremy Gauntlett among those who undermined him because he is black.
Details of the 43-page report were widely publicised in early 2005 and resulted in tensions within the Cape Bar among lawyers who agreed with Hlophe’s assessment, and those who didn’t.
In a 2012 interview with Business Day, Judge Hlophe said the racism report was the cause of his current troubles.
“Before 2004, I was a darling of the legal profession. I was a superstar. There were people in the legal profession, including some retired judges, who were saying openly that John is a star, he is a future chief justice of this country ... Until 2004. Until the racism report,” he told the newspaper.
In 2006, Judge Hlophe faced a complaint before the Judicial Service Commission over his links to the Oasis financial group. Hlophe had been receiving a R10 000 monthly retainer from the company, which was known to litigate in the Western Cape High Court.
In all Judge Hlophe is said to have received R500 000 from the group, and the complaint related to the ethics behind judges receiving remuneration outside of their judicial duties.
Judge Hlophe maintained that he had received verbal permission from former Justice Minister Dullah Omar, however his detractors were unhappy with Hlophe’s explanation – particularly since the retainer had increased from R10 000 to R12 500 without Omar being informed.
Also of major concern was the fact that Judge Hlophe had not declared his relationship with Oasis before giving the firm permission to sue Judge Siraj Desai.
Loved and hated
Despite his checkered past Judge Hlophe has his backers, chief among them being Professor Paul Ngobeni.
Like Hlophe, Ngobeni believes the Western Cape Judge President is being targeted for his views on transformation in the Western Cape legal community.
“I don’t think it&39;s Hlophe who is a polarising character. We are dealing with the South African legal community with its apartheid past. I think lawyers are very good in double speaking. We are all busy denying the fact that racism is still very much part of the legal system here in South Africa,” Ngobeni said.
Ngobeni says racism in the legal community is widespread.
“Judges, magistrates, advocates, senior advocates - its people you will never associate with racism because there is always this myth that racism is part of the blue-collar kind of culture of psyche. Here in South Africa, probably more than anywhere else, racism is very endemic in the legal profession,” he says.
Asked what he thought about Judge Hlophe’s prospects of success at the Tribunal on Monday, Ngobeni was confident of a win mainly because of the reluctance of Justices Bess Nkabinde and Chris Jafta to be involved in the process.
Justices Nkabinde and Jafta are the two judges Hlophe is accused of speaking to in an attempt to influence the court.
“If you unpack the complaint, you have two judges who he allegedly spoke to who said from the beginning that they were not complainants and they were never going to complain. After some serious arm-twisting they finally were complainants. The other people were simply coming along for the ride. The other judges were simply relying on hearsay evidence,” he said.
However, not everyone shares Ngobeni’s views.
Former Constitutional Court Justice Johann Kriegler was at the forefront of a Freedom Under Law (FUL) complaint against Judge Hlophe, submitted to the JSC at the end of 2011.
The group had complained that Judge Hlophe had made derogatory comments about the judges of the Constitutional Court who laid the complaint against him, during the time that he was defending himself.
Kriegler, along with the other FUL members, believed that Judge Hlophe should no longer serve on the bench. However, the JSC dismissed the complaint.
Kriegler says that despite the JSC’s dismissal of the complaint, he still believes Hlophe should not be a judge.
“Nothing has happened in the last five years to cause us to change our opinion of Judge Hlophe&39;s fitness for judicial office,” Judge Kriegler told eNCA.com this week.
Kriegler rubbished the notion that Hlophe’s troubles relate to racism.
“The charge to be investigated by the tribunal was laid by the justices of the Constitutional Court, persons who could hardly be accused of being anti-transformation. Besides, however well camouflaged, this allegation is nothing other than the hardy perennial race-card -- unless, of course, it is suggested that it is in the interests of transformation to turn a blind eye to misconduct merely because of the ethnicity of the complainant and/or offender,” he said.
The group will be watching the outcome of Monday’s proceedings closely, since it was as a result of a court case brought by FUL that the complaint was resurrected.
“We would like to see the investigation that the JSC started but then, having been reconstituted, subsequently ducked, being conducted as directed by the Supreme Court of Appeal. In particular we would like to see Judge Hlophe&39;s version of the facts being thoroughly tested,” Judge Kriegler said.
The hearing, which begins on Monday, will be open to the public.