AN END might finally be in sight for the seemingly never-ending "Hlophe saga", which is now almost five years old.
On Friday, Chief Justice Mogoeng Mogoeng announced that a judicial conduct tribunal had finally been established to look into allegations of gross misconduct against Western Cape Judge President John Hlophe.
Judge Mogoeng said he expected the tribunal "barring circumstances beyond its control" to complete its business by the end of May. However, given that this will be one of the first times a judicial conduct tribunal has been established under the amended Judicial Service Commission Act, and given the history of this dispute (seemingly endless back-and-forths to court), the tribunal might very well face a number of intervening "circumstances beyond its control".
Justice Mogoeng’s announcement was almost overshadowed by his bombshell that highly respected advocate Jeremy Gauntlett SC had, for the fifth time, been overlooked by the Judicial Service Commission (JSC), this time as a potential Constitutional Court judge.
The Hlophe saga has been dragging on for so long and one could be forgiven for forgetting what it is all about: the first potential impeachment that democratic South Africa has seen.
In May 2008, all the then-justices of the Constitutional Court made a bombshell announcement. They said they had laid a complaint with the JSC that the Western Cape judge president had approached two justices and improperly sought to influence the outcome of four judgments then pending before their court.
The judgments were connected to corruption charges against President Jacob Zuma, then president of the African National Congress. Many believed the charges against him were the only thing that stood between him and presidency of the country.
Judge Hlophe responded to the justices’ complaint with guns blazing, virulently denying any impropriety, lodging a counter-complaint and accusing the justices, in particular former chief justice Pius Langa and Deputy Chief Justice Dikgang Moseneke, of being part of an agenda to get him impeached.
The dispute split the legal fraternity and rocked the judiciary. After many back-and-forths to court, the JSC ultimately cleared both sides, without having a formal inquiry, with cross examination.
But this decision was challenged in court and was overturned by the Supreme Court of Appeal — forcing the JSC back to square one.
In the meantime, a whole new procedure for dealing with complaints against judges was passed into law. And it is under this procedure that Judge Hlophe’s fate will be decided.
His tribunal was one of three announced on Friday. It will test the procedures set up by the amended act in the heightened political atmosphere that has come to be associated with this dispute.
If the past is anything to go by, the tribunal will have to tread very carefully and do every thing strictly by the book — or risk being hauled before court. Not an easy task for a new structure with no precedent to work with.
One of the first decisions that the Hlophe tribunal will have to make is whether to open the hearing to the public, as the media will inevitably request. The terms of reference say "any hearing of the tribunal shall be held in private, however the tribunal president shall have the discretion to determine, if it is in the public interest and for the purpose of transparency, whether all or any part of the hearing shall be held in public".
According to its terms of reference, the tribunal’s task — made up of retired Gauteng High Court judge Joop Labuschagne, Judge Bonisile Sandi of the Eastern Cape High Court and attorney Noxolo Maduba — is to investigate and make findings on two questions. It must decide "whether (Judge Hlophe) attempted to improperly influence justices BE Nkabinde and CN Jafta … to decide matters that were pending before the Constitutional Court in favour of any of the litigants; and if so, whether (Judge Hlophe) is guilty of gross misconduct as contemplated in section 177 of the constitution".
Whatever verdict the tribunal reaches, it is still ultimately the JSC’s decision whether Judge Hlophe has committed gross misconduct. And, if so, it still falls to Parliament to impeach him.