‘Hlophe judgment boggles the mind’
Judges turn to top court over ‘hurtful’ insinuations
COURTESY and decorum are taking a back seat in the judiciary as judges trade barbs over the legality of a probe into the conduct of Western Cape Judge President John Hlophe.
In 2008, Hlophe was accused by 11 Constitutional Court justices of improperly trying to influence the outcome of court cases linked to the arms deal scandal involving Jacob Zuma and French arms subsidiary Thint.
A fresh salvo was fired this week in the eight-year battle by two Constitutional Court justices who, in an affidavit, accused the Supreme Court of Appeal of making “mind-boggling” insinuations about their integrity.
Hlophe allegedly tried to “improperly persuade” justices Bess Nkabinde and Chris Jafta to act favourably towards a “persecuted” Zuma in 2008, when they were part of a judicial panel hearing the cases.
The Judicial Service Commission, responsible for appointing and disciplining judges, initially cleared Hlophe of wrongdoing — an outcome that was challenged by civil society groups.
A judgment by the appeal court last month paved the way for a fresh investigation of his conduct, despite the two affected judges raising concerns about the legality of such a tribunal.
Nkabinde and Jafta approached the Constitutional Court this week, seeking leave to appeal against the SCA judgment, which they said was flawed.
They took exception to the opening paragraphs by Judge Mahomed Navsa which cited a pronouncement by Lord Hailsham, the former British Lord Chancellor, about judicial officers who sometimes developed “judges’ disease”.
“The imputations by the SCA suggested indirectly that we have the judges’ disease of pomposity, irritability, talkativeness and proneness to obiter dicta [making remarks in passing],” they said in their affidavit to the Constitutional Court.
They argued that the rule of law was the issue at hand, not the conduct of judges, which the court had allowed to cloud its judgment.
“None of the parties alleged that our conduct was unbecoming of judges. None of the parties suggested we lack integrity. As judges we have taken an oath in terms of the constitution to uphold the constitution and the laws of the republic.
“How the SCA decided to make those conclusions, hurtful and unwarranted imputations which have far-reaching implication, boggles the mind.”
The two justices told former Chief Justice Pius Langa and his deputy, Dikgang Moseneke, at a meeting on May 28 2008, that the cases against Zuma and Thint — the company awarded a lucrative contract to equip navy frigates with combat suites — were important for the future of the ANC president.
Hlophe had allegedly “wished for a particular result in the matter”.
Hlophe denied the claims, saying the justices had been manipulated by Langa and Moseneke and suggesting there was a political plot to oust him.
By then, Hlophe was a controversial figure, having authored a report about racism at the High Court in Cape Town and allegedly insulted an attorney whom he described as a “piece of white s**t” who should “go back to Holland”.
Lobby group Freedom Under Law was “astounded to learn” that Hlophe was participating in the selection of judges by the JSC when he could be impeached — should the JSC find that he tried to influence the two judges.
It was “not only ethically unacceptable that the JSC should allow him to participate in the selection of judges but possibly also illegal, endangering the validity of decisions to which he is party”, it said.
The judiciary was also atwitter this week over a series of WhatsApps that accused Chief Justice Mogoeng Mogoeng of “fruitless and wasteful expenditure” flying his “undemocratically appointed judges all over the world”.
The messages, sent in 2014 by Judge Rosheni Allie of the High Court in Cape Town to a professor of law in the US, surfaced as she was interviewed by the JSC for the position of deputy judge president in the Western Cape.
She described them as “private communication between friends”, saying the disclosure was an “unconscionable breach of trust” and apologised to the commission.