Chief justice under fire over Hlophe

SOUTH Africa's top judge is under fire for allowing Cape Judge President John Hlophe - who is embroiled in controversy over his professional conduct - to screen candidates' fitness for the bench.

Retired Constitutional Court Justice Johann Kriegler has sent three letters to Chief Justice Mogoeng Mogoeng in the past month, objecting to Judge Hlophe sitting at Judicial Service Commission (JSC) interviews with potential judges in October.

Justice Kriegler, chairman of advocacy group Freedom Under Law, said: "To say that we were astounded would be an understatement: a person charged with the most serious allegations of both criminal conduct and gross misconduct as a judge was openly - and ostensibly with the consent of the chief justice, the ultimate arbiter of judicial propriety - screening candidates for their fitness for judicial office."

Judge Hlophe is embroiled in an unprecedented legal row dating back to 2008, when Constitutional Court justices laid charges of gross misconduct against him at the JSC. The justices accused their colleague of trying to influence judgments related to corruption charges against President Jacob Zuma.

The JSC cleared Judge Hlophe of the charges, but the Supreme Court of Appeal ruled that the commission had to hear the matter again.

Now the Cape judge president is asking the Constitutional Court to decide if he may challenge the appeal court's ruling.

Freedom Under Law, whose board of directors includes George Bizos SC and Jeremy Gauntlett SC, lodged a second complaint of gross misconduct against Judge Hlophe at the JSC earlier this year.

They said he was not fit to be a judge because of his "scandalous public utterances". The charges are serious enough to warrant impeachment.

Judge Hlophe's attorney, Barnabas Xulu, said yesterday that he was shocked to hear about the exchange of letters, but had been unable to contact his client.

"What is strange and shocking in this whole thing is that there are judges who have chaired the JSC with complaints against them and Freedom Under Law was around. They never said a thing about it," Xulu said.

"Former Chief Justice [Sandile] Ngcobo, Justice [Dikgang] Moseneke, they chaired the JSC while there were complaints ... It happened also with former Chief Justice [Pius] Langa ..." and Freedom Under Law did not comment.

In an e-mail response to Justice Kriegler, Chief Justice Mogoeng said he would discuss the complaint with his JSC colleagues.

"Judge President Hlophe stood in for [Gauteng] Judge President Ngoepe and I interacted with him not only during the JSC hearings but also at the Heads of Courts meeting on October 9 2011 ..."

The chief justice wrote that he would not "act unilaterally" but would involve his JSC colleagues in deciding on Judge Hlophe's involvement in the commission's hearings.

Chief Justice Mogoeng said Justice Kriegler would get a response after the next JSC meeting in April 2012. "Our engagement on this matter will end here for now," he wrote.

On Tuesday, in his final letter, Justice Kriegler said Freedom Under Law "cannot fecklessly accept that the charges hanging over Judge Hlophe's head will effectively be ignored for at least another five months".

Yesterday Justice Kriegler said: "I will be consulting with the whole board ... We will obtain legal advice as well."

He said the next step might be to go to court or the public protector. "Quite clearly it is a very serious matter. A grave matter."

Gauntlett did not rule out the option of legal action either.

On behalf of the JSC, advocate Dumisa Ntsebeza said yesterday that Judge Hlophe had not been found guilty of wrongdoing, and that it was standard procedure for the next most senior judge president to fill in if a colleague was unable to attend.