Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
22 August 2008

Exit Strategy for Hlophe?

The Mail & Guardian reports this morning that prominent black lawyers were attempting to broker a deal that would find an exit strategy for Judge President John Hlophe. The deal would help to avoid a damaging hearing before the Judicial Services Commission (JSC) while also providing the Judge President with compensation to keep him living in the style he has become accustomed to.

Normally a judge would only be able to retire from service at the earliest at the age of 65. Hlophe is still young and many years away from this retirement age. But section 3(2)(d) of the Judges Remuneration and Conditions of Service Act states that a judge “may at any time on his or her request and with the approval of the President be discharged from active service as a judge if there is any reason which the President deems sufficient”.

Section 4 and 5 of the Act provide for the payment of both a lifetime pension as well as a retirement bonus when a judge is discharged in this manner. This section gives wide powers to the President to discharge a judge form his or her duties in an honorable way while allowing for the appropriate compensation to be paid to such a judge.

As far as I know, very few judges have ever been discharged in this manner before they reach the age of retirement. It has happened only when the judge is very close to retirement age and wishes to take a slightly early retirement. It would therefore be unprecedented for the President to discharge Judge President Hlophe under a cloud so many years before he reaches the official age of retirement.

I am not sure taking this route would be wise either. In fact, allowing the Judge President to retire early on full pension would seem like the worst kind of solution. He would leave under a dark cloud and his name would not have been cleared. Paying him his pension under these conditions would thus be seen as sending a signal that judges – if they are well connected – are really above the law and the Constitution and many would argue that it would give the appearance of rewarding Hlophe for his alleged misconduct.

In any case, making use of these provisions would not solve the Judge President’s problems because he would – I would argue – remain a judge receiving a pension form the state and the JSC would probably still have jurisdiction over him and will be able to pursue the Constitutional Court complaint against him.

There are only two other options open to Judge President Hlophe.

He can soldier on to the bitter end, which will probably cause as much damage to himself as to the credibility of the judiciary. The JSC will have to cross-examine him and he will have to explain why – even on his own version of events – he should not be impeached for gross misconduct. At the same time he would be able to vigorously pursue his Jacob Zuma strategy of claiming to be a victim of the Constitutional Court conspiracy, thus damaging the credibility of the highest court. Regardless of the outcome of such a JSC process, the reputation of the Judge President, the Constitutional Court and the judiciary as a whole would be damaged.

A second option would be for Judge President Hlophe’s lawyers to explain to him that even on his own version of events, he is in deep legal trouble, that the tide is turning against him – even among black members of the JSC – and that it might therefore be better to resign before the case gets to the JSC and he is utterly destroyed. This would not be a very attractive option to the Judge President because a resignation would be seen by many as tantamount to an admission of guilt. He would also not be able to sustain his present life style if he resigns. But it would prevent further damage to his reputation and that of the judiciary as a whole.

I for one would hope this is what will eventually happen. Although I have been a critic of Judge President Hlophe I do not want to see him destroyed. I am told he is a very funny and warm hearted man when one spends time with him over a glass or five of wine. This kind of event also gives ammunition to racists opposed to transformation because if the JSC eventually decides to impeach the Judge President, opponents of judicial transformation will gleefully point out that the first judge ever to be impeached in South Africa was a black former academic.

Maybe the best option is for someone – Oasis perhaps, or a second rate law school somewhere? – to offer him a job on his resignation. But somehow I think this is not going to happen as long as the Judge President thinks he can win this fight. I suspect he is misjudging the mood amongst black colleagues and that if he persists he is in for a very rude shock.

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