The faiths and high hopes that a young Mandlakayise John Hlophe carried from KwaDukuza via Cambridge and finally as Judge President of the Western Cape, appear to underpin the lack of appetite for more than a decade to hold him accountable.
So much collateral damage could have been spared had the Judicial Service Commission adopted a less supine position in Western Cape Judge President John Hlophe’s freestyle slalom through democratic South Africa’s fledgling institutions of justice.
In April 2021, 17 years after “Oasis” and 13 years after Hlophe’s attempt in 2008 to influence Constitutional Court judges seized with Jacob Zuma’s corruption probe matter, a JSC tribunal added a footnote for the history books.
Hlophe and his legal disciples, through his comments and their amused reception of these over the years, appear to have picked up on a brand of nasty populist rhetoric also deployed by Zimbabwe’s former founding president, Robert Mugabe, as the country plunged into violence and economic stagnation., a YouTube channel, Hlophe set out some of his thoughts on the law.
Makwakwa, who describes himself as an “investigative journalist”, forgot to set out for his viewers exactly where the development and adoption of the Freedom Charter, the Bill of Rights or the Constitution fit in and how this has served to upturn many unjust laws. A month before Hlophe’s suspension by President Cyril Ramaphosa in December 2022, the Judge President addressed the Black Lawyers Association in Durban.
The Judge President of the Western Cape’s comments were, of course, intended to be “sensational” and indeed hurtful and he was well aware of their effect and the perception of brimming violence in his description of white South Africans as “land thieves”. Judge Dumisani Zondi, who deliberated on a complaint against Kriegler lodged with the JSC by Hlophe’s one-time lawyer Vuyani Ngalwana, found the former Constitutional Court judge’s public evaluation of Hlophe “uncollegial”.
An undisclosed majority of the JSC opted to let Hlophe off the hook, offering “insufficient evidence” as the reason. The long passage of time and the deluge of JSC matters that have followed Hlophe into suspension have obscured some of the detail of the Hlophe/Oasis matter in the fog of lawfare.that the Oasis financial group had been required to file in its ultimately aborted attempt to sue Desai. These set out that Oasis had first asked Hlophe for permission to sue Desai in 2001, a request that was initially denied by the Judge President.
His actions have undermined the very purpose of the JSC, which is to prevent perceived and real political interference in the judiciary. “Its impact on the judge is self-evidently devastating,” added the court and as a senior Judge President, Hlophe should have been “sensitive to the rigid north star for judges performing their duties impartially and without fear, favour or prejudice”.
Hlophe has also been charged by his deputy, Patrica Goliath, of insulting her as a “non-entity”, which, ironically, is how the apartheid government viewed black South Africans. There is no doubt this triggered in Hlophe a bitterness and resentment which later came to consume him. He now seems to have found an outlet in populist rage.John Hlophe’s beginnings as the son of a KwaDukuza traditional healer/security guard and a domestic worker as well as his academic accomplishments, including a PhD from Cambridge University, and finally his leadership of the Western Cape Division marked an extraordinary trajectory.
However, Hlhope’s deputy at the time, Jeanette Traverso, proffered a minority judgment which was later upheld by the SCA, prompting Hlophe to reportedly remark toIn that instance, SCA Judge Louis Harms found that Hlophe had denied the pharmaceutical companies the right to a fair hearing by unreasonably delaying his decision on their appeal application.
His is a name readers might recognise as having featured prominently in suspended Public Protector Busisiwe Mkhwebane’s Section 194 impeachment inquiry.
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