Black Lawyers Association seeks to enter the fray in John Hlophe litigation

In a letter to litigants, the organisation said there was no 'adverse and material consequence' when Hlophe allegedly sought to influence 'fearless independent judges'

01 December 2021 - 13:28 By Franny Rabkin
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Western Cape judge president John Hlophe has applied to set aside a finding of gross misconduct. File photo.
Western Cape judge president John Hlophe has applied to set aside a finding of gross misconduct. File photo.
Image: Trevor Samson

The Black Lawyers Association (BLA) has asked to join in the litigation over the potential impeachment of Western Cape judge president John Hlophe, saying it was the Judicial Service Commission’s (JSC) process, and not Hlophe, that had harmed the dignity of the judiciary.

Hlophe has been referred to parliament for possible impeachment after the JSC decided by majority that he was guilty of gross misconduct in respect of a 2008 complaint by justices of the Constitutional Court.

The ConCourt justices complained that Hlophe had sought improperly to try to influence the outcome of cases pending before their court related to corruption charges against former president Jacob Zuma. The JSC decision followed an April finding of gross misconduct by a Judicial Conduct Tribunal.

However Hlophe has approached the Johannesburg high court to review and set aside the JSC meeting that took the decision to refer him to parliament as well as the Tribunal’s decision. On Monday, the high court ruled that the complainant justices of the ConCourt and Freedom Under Law (FUL) could intervene in the review application. Hlophe had not opposed the justices’ intervention but had virulently opposed FUL’s.

In a letter on behalf of the BLA from attorneys Venfolo Lingani Incorporated to the parties asking for their consent to intervene as an “interested party”, the BLA said it was formed in 1977 to address the adversity faced by black lawyers. In seeking to intervene, it was acting “in the interests of black advocates, attorneys and judges from its ranks” and in the interests of justice, since this case was likely to be precedent-setting when it came to possible impeachment.

“An organisation with a professed interest in the transformation of the judiciary, has a perspective of its own to place before the court as the court constructs the jurisprudential DNA of impeachment,” said the letter.

It said the BLA would submit that it was the JSC that had failed in its constitutional duty to protect the dignity of the courts by invoking “a process that required members of the judiciary to testify antagonistically on oath in adversary proceedings to reach a conclusion that one judge is speaking the truth, and the other is not”.

This was an apparent reference to the Judicial Conduct Tribunal at which Hlophe and former Constitutional Court justices Bess Nkabinde and Chris Jafta testified and were cross-examined. Jafta and Nkabinde were the two justices Hlophe was alleged to have sought to influence.

The BLA letter does not address the 2011 judgment of the Supreme Court of Appeal that set aside an earlier decision by the JSC that had cleared Hlophe. The judgment held that by adopting a procedure that eschewed cross-examination - the best way to get to the bottom of factual disputes - the JSC had abdicated its constitutional duty to investigate complaints of judicial misconduct.

The BLA letter said that the gravamen of the complaint against Hlophe – an improper attempt to influence “fearless and independent” judges - “had no direct, adverse, and material consequences to the dignity of the judiciary”. Instead harm to the judiciary had been caused by the public dispute between judges.

“This arises from the JSC process that has been employed and not by the alleged improper interference or influence by Hlophe JP,” said the letter.    

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