JSC to finally hear John Hlophe misconduct case

After a two-year delay, a date for the hearing of the 12-year-old gross misconduct complaint against Western Cape judge president John Hlophe has finally been set.

Judicial Service Commission (JSC) secretary Sello Chiloane on Monday told Business Day that the 2008 complaint lodged against Hlophe by the Constitutional Court, after he was accused of trying to persuade two justices to swing a judgment in favour of then ANC president Jacob Zuma, will be heard on October 26 to 30.

Zuma was attempting to challenge the legality of search and seizure warrants used by the now disbanded Scorpions investigative unit to collect more than 93,000 documents as evidence against him in raids conducted in August 2005.

Acting justices Bess Nkabinde and Chris Jafta told the JSC subcommittee tasked with deciding whether Hlophe should face possible impeachment that the judge president told them both separately that the Supreme Court of Appeal — which had dismissed Zuma’s challenges to the legality of the warrants — had got it wrong.

According to Jafta, Hlophe told him that the cases involving Zuma needed to be looked at “properly” because he believed Zuma was being persecuted just as he (Hlophe) had been persecuted. Jafta said Hlophe told him

“sesithembele kinina”, meaning “we pin our hopes on you”.

In her evidence, Nkabinde said Hlophe had told her telephonically that he “had a mandate and that they could talk about privilege”. The issue of attorney-client privilege was one of the key challenges raised by Zuma’s lawyers to the legality of the Scorpions raids, as authorities had also seized multiple documents from his attorney, Michael Hulley.

According to Nkabinde’s evidence, Hlophe had visited her in chambers and started talking about the Zuma case. He said that it was “an important case and that the issue of privilege was also important”. “It had to be decided properly because the prosecution case rested on that aspect of the case.”

Nkabinde said she responded by snapping, “my brother, you know that you cannot talk about this case. You have not been involved in the case, you have not sat on it and you are not a member of the court to come and talk about the case.”

She testified that Hlophe had then told her that he did not mean to interfere with her work but he went on to explain “that the point is that there is no case against Mr Zuma”.

He repeated that “Mr Zuma has been persecuted, just as he was persecuted”.

During his interview with the JSC subcommittee, Hlophe denied much of the evidence given by Jafta and Nkabinde and suggested that they may have misconstrued certain of his comments. He categorically denied trying to influence them.

That hearing had been put on hold since June 2018, because of an unresolved fees dispute between the justice department and Hlophe’s attorney, Barnabas Xulu. Hlophe has already received more than R3.5m in state funding for the legal costs of his impeachment inquiry — with no requirement that he pay back the money if he is found guilty of gross misconduct.

Chiloane referred queries about whether the fees dispute had been resolved to Xulu, who did not respond to questions on the issue.

The JSC’s failure to reach any resolution of the 2008 complaint, which has spawned multiple court challenges and already cost taxpayers millions of rand in legal costs, has seen it facing growing criticism that it is failing to hold judges accused of wrongdoing to account.

That criticism intensified when Western Cape deputy judge president Patricia Goliath lodged a second gross misconduct against Hlophe earlier this year, in which she accused him of trying to get judges disposed towards then president Zuma to decide on the legality of the crucial Russia-SA inter-governmental nuclear agreement.

She also claimed that he assaulted an unnamed junior judge — now identified as judge Mushtak Parker — who was then influenced by two other judges not to lay criminal charges against Hlophe. Parker claims he may have “misremembered” the incident.

Hlophe said Goliath’s accusations against him were a “malicious and bad-faith attempt to generate public outrage, lynching and condemnation of my leadership of the division that would support calls for my immediate suspension and removal”.

Goliath has strongly denied that accusation.

The commission said this case was “at an advanced stage”.