John Hlophe and Jacob Zuma legal sagas reveal fundamental flaws in the application of constitutional justice

South Africa’s negotiated transition from a despised system of apartheid injustice to a modern system of constitutional justice was rightly applauded around the world. But the efficacy of the system is only as strong as its application. 

The system is failing to balance the rights of individuals to fair processes with the needs of society for expeditious justice. Instead, it has enabled an environment of greyness in which people are publicly accused of terrible things, but neither convicted nor exonerated. Retaining the rights to due process is non-negotiable; so, too, should be eliminating kinks in the track that inhibit the swift discharge of justice.

The long-running and as-yet-incomplete legal saga, in which Western Cape Judge President John Hlophe was last week found to have committed gross misconduct by attempting to sway the judgments of two Constitutional Court judges 13 years ago, is a case in point.

The saga reveals fundamental weaknesses in the management of justice. 

When the Judicial Conduct Tribunal released its finding that Judge Hlophe had acted in breach of the Constitution, some viewed it as a sign that the wheels of justice were finally turning again.

But the tribunal’s recommended sanction, that Judge Hlophe should be impeached, must still be considered by the Judicial Service Commission — while Judge Hlophe’s attorney has already indicated plans to take the finding on review. 

The truth is that the wheels of justice didn’t stop turning. It’s more a case of a train on an interminable journey, without a navigation system or driver to bring it home — with endless supplies of fuel funded by South African taxpayers.

The monetary costs of the journey are immense. At various stages, all involved parties retained their own senior counsel, with Judge Hlophe represented by a British QC.

The Supreme Court of Appeal established an important principle in this regard this week when it ordered former president Jacob Zuma to pay his own costs in his effort to endlessly delay the arms deal-related corruption case in which he is accused of wrongdoing for his personal benefit.

A few years ago, senior advocate Wim Trengove, acting for the prosecution in the arms deal-related corruption case of Zuma, eloquently described what he termed the “Stalingrad defence”. Named after Russia’s military tactics in defence of Stalingrad during World War 2, it was a legal strategy in which the accused opposed anything the plaintiff presented and appealed every ruling favourable to them.

The former president used a consistent pattern of litigation that was ultimately designed to delay his prosecution, Trengove said.

In their respective defences, both the former president and Judge Hlophe have vigorously opposed, presented political conspiracy theories and appealed. Both have argued that delays in the application of justice have prejudiced them. And both cases have been allowed to drift due to indecisive and/or ill-managed systems and structures.

Judge Hlophe was, however, not solely responsible for delays. The judges who initially complained about him sought the sanction of the courts to avoid deposing affidavits in the matter. And, for a number of years, the Judicial Service Commission simply showed no appetite to expedite the matter.

The costs of delaying justice clearly extend beyond legal fees. Over the course of the journey, people lose faith. It erodes their belief in natural justice and in a system in which what is right, ultimately prevails. In a society with a high crime rate, the erosion of such beliefs can literally be fatal.

South Africa needs to engage in an urgent conversation about its judicial management system. It is a system that must be capacitated to dispense swifter justice without infringing on the rights of accused persons to fair processes. 

Prosecutors and judges must be enabled to reassert their authority rather than automatically fold at the first hint of the raising of a constitutional point. The JSC must reassert its authority to manage the judiciary, constitutionally and expeditiously.

Those at the coalface of dispensing justice must feel empowered to use their powers and duties and resources at their disposal to reassert the rule of law.

Justice is not an endless game of chess. There are no honourable draws. DM