EDITORIAL | John Hlophe should have benched himself until his matter is finalised

Nearly 14 years after Western Cape judge president John Hlophe stepped into former Constitutional Court judge Bess Nkabinde’s chambers late in April 2008 for a discussion about Jacob Zuma and “privilege”, South Africans can be forgiven for having lost track of a matter that should have made regular headlines. It is a saga that goes to the heart of our democracy: judicial independence.

Hlophe was back in the high court in Johannesburg on Monday, the latest chapter in a protracted battle to save his career. He has been criticised for using “Stalingrad” tactics, but to be fair, not all the postponements have been his fault. However, the causes of the delays do not change the disconcerting fact that he still holds a senior judicial position despite several decisions against him. This includes a Judicial Conduct Tribunal (JCT) finding that he breached section 165 of the constitution — the provision protecting judicial independence.

It defies logic to have a senior judicial officer in office while he has a cloud of incredibility hanging over his head.

The Hlophe matter is based on a complaint that he tried to influence justices Nkabinde and Chris Jafta on a matter before the Constitutional Court. The case revolved around arms deal-related corruption charges against Zuma, who was at the time in pursuit of the highest office. It was an incredibly serious allegation involving a top judge, the apex court and a senior politician who was on his way to becoming president of the country. 

Zuma is yet to be found guilty of corruption by a court of law, but every day South Africans are paying the price for his wasted years in office. Hlophe, on the other hand, has been criticised by the Supreme Court of Appeal (SCA), JCT and Judicial Service Commission (JSC), yet remains in charge of the Western Cape high court. Since the 2008 saga he has faced several other complaints too, the latest being allegations of misconduct raised by his deputy, Patricia Goliath. 

On Monday Hlophe was in the high court trying to overturn a gross misconduct finding against him that could lead to his impeachment, another move that will further delay the outcome. It remains his right to use every legal mechanism to defend himself. However, it defies logic to have a senior judicial officer in office while he has a cloud of incredibility hanging over his head. It is unfortunate we are relying on the coercive powers of the JSC to deal with such weighty matters. Judges should hold themselves to higher ethical standards and Hlophe should have been the first to say he would step aside pending the outcome of the matter.