What they said, what he said
First announced by the judges of the Constitutional Court in a media statement, the 2008 complaint against Western Cape Judge President John Hlophe was later detailed by then chief justice Pius Langa in a statement. More details emerged when the judges gave evidence before the JSC.
Hlophe had visited the Constitutional Court on two occasions. The first visit was to see Justice Chris Jafta, then a Supreme Court of Appeal judge doing an acting stint at the Constitutional Court.
During his meeting with Jafta, said Langa, Hlophe had raised the Zuma/Thint cases, saying they needed to be decided “properly”. He said Zuma had been unfairly persecuted, just as he, Hlophe, had been.
Jafta had replied that the cases would be decided properly. Hlophe had said “sesithembele kinina”, translated for the JSC as “you are our last hope”.
Later, Hlophe had visited Justice Bess Nkabinde. Nkabinde had written a post-hearing note on the question of legal privilege, one of the thornier issues in the Zuma/Thint litigation.
Langa said, when Hlophe called to arrange the visit, he had told Nkabinde he was coming there “with a mandate”. In her later evidence she said, when Hlophe visited her, he had said “a concern had been raised that people who are appointed to the Constitutional Court should understand our history”, that he had connections with ministers, whom he advised from time to time, and that he had seen a list from people in intelligence, and that there were people who would be losing their jobs after the elections. He said the case had to be properly decided, she said.
Jafta and Nkabinde both said they believed Hlophe was trying to influence them to favour Zuma, although Jafta said he had not thought so initially.
Hlophe has consistently denied any nefarious intention behind his visits or statements. He said he had talked about the Zuma/Thint judgments because he saw the voluminous case files in Jafta’s office and that he was just interested in the case — in the same way as the whole country was interested in it.
He said “the mandate” he had referred to when he called Nkabinde to arrange a visit was that he had been asked to organise a Commonwealth judges conference. When he did visit Nkabinde, it was she who had said she was writing a note on privilege, he said. He did not speak of connections in intelligence or that anyone would lose their jobs, he said.
Although he did say the case should be properly decided, he denied he said this in the context alleged by Nkabinde. What he meant was that there had been uncertainty created by the SCA judgment and this was why it needed to be decided properly.
Hlophe also said, when he said “sesithembele kinina” to Jafta, it was a parting shot meant as a note of encouragement.
Hlophe had also initially countercomplained, saying the way the justices had gone about their complaint had breached his constitutional rights. He said Langa and then deputy chief justice Dikgang Moseneke were politically motivated and had jumped on the bandwagon with those who were persecuting him ever since he had delivered a report into racism in the judiciary (in 2014). He later dropped his countercomplaint.
According to a 2011 judgment by the SCA, penned by judge of appeal Piet Streicher, “Hlophe JP contradicted almost everything that Nkabinde J” said. These contradictions had to be resolved by testing both sides’ versions in cross-examination. —