What they said, what he said

Mail & Guardian - - News -

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. —

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