No end to delays in Hlophe case
● With a 12-year delay it is easy to forget what the misconduct complaint against Western Cape judge president John Hlophe is all about. If the allegations are true, it was an attempt at capture — of a sort — of the judiciary.
This week the Judicial Service Commission (JSC) announced that, yet again, Hlophe’s judicial conduct tribunal had been postponed — until December. No-one was surprised.
There is now a new, dramatic complaint, this time also against Hlophe and made by his deputy.
Deputy judge president Patricia Goliath’s complaint comprises a number of allegations, including that Hlophe assaulted a colleague. The latter complaint is dramatic but symptomatic of something different, a dysfunctional and unhappy high court division. The earlier complaint, if true, has a broader political significance.
In 2008 all the then judges of the Constitutional Court, plus two acting judges, complained to the JSC that Hlophe had sought to influence the outcome of cases pending before their court and connected to the corruption prosecution of Jacob Zuma, then the president of the ANC. At the time it was widely believed that a judgment in Zuma’s favour would clear the path for him to become president of the country.
The inference of what was alleged by justice Bess Nkabinde and acting justice Chris Jafta was that Hlophe had been sent to them and had not approached the two judges of his own volition.
In their complaint, the judges said when Hlophe had phoned Nkabinde ahead of his visit to her, he said he had “a mandate” to see her and wanted to discuss legal privilege, one of the central and thorny issues in the Zuma-Thint cases. When he arrived, he told Nkabinde that a concern had been raised that the Constitutional Court should “understand our history”.
Summing up the evidence that Nkabinde gave when the JSC first heard her, the Supreme Court of Appeal (SCA) said that when asked who had raised this concern, Hlophe told Nkabinde he had some connections with some ministers. There was a list of people implicated in the arms deal and, said the appeal court, Hlophe said “something to the effect that some of the people who appeared in the list were going to lose their jobs when Mr Zuma became president”.
Hlophe has always maintained that his visits to the two judges were innocent and that his remarks to Jafta and Nkabinde were just passing comments because he saw the Zuma-Thint files stacked up in the judges’ chambers and the legal issues involved were
ones he felt strongly about.
He had concerns about how the SCA had dealt with legal professional privilege in the Zuma-Thint cases and he felt that, like Zuma, he had also been persecuted since his report in 2004 on racism in the judiciary had ruffled feathers.
The “mandate” he referred to was one from the chief justice to chair a committee that would organise a conference, he said. He never said anything about connections with ministers, he said.
Hlophe suggested that the justices’ complaint, particularly on the part of chief justice Pius Langa and deputy chief justice Dikgang Moseneke, may have been politically motivated.
Whether it was judicial politics or politics proper, or both, was unclear. It was just six months after the ANC’s bruising Polokwane conference and Moseneke in particular was viewed by some as supported by Thabo Mbeki, whom Zuma had supplanted as ANC leader.
Hlophe said the judges had joined those who had been seeking to have him (Hlophe) removed ever since his racism report. His allegations touched on deep sensitivities in the legal community.
Who is telling the truth has yet to be determined. When the JSC, a mix of presidential appointees and lawyers, first heard both sides — in two separate processes — no-one was cross-examined.
Obvious factual discrepancies were smoothed away as “irrelevant” and therefore immaterial — a finding that the SCA said was irrational.
In its 2011 judgment, the appeal court said: “Hlophe JP contradicted almost everything that Nkabinde J said.” Listing all the parts of Nkabinde’s evidence that Hlophe denied or contradicted, the judgment said these could not “conceivably, rationally be considered to be immaterial”.
Justice Piet Streicher said that by adopting a procedure that eschewed cross-examination — the best way to get to the bottom of factual disputes — the JSC had abdicated its constitutional duty to investigate complaints of judicial misconduct.
Hlophe then sought to appeal against the SCA decision in the Constitutional Court, but because a number of its judges were complainants in the case, the Constitutional Court decided it could not hear the appeal, and the SCA’s decision stood.
The JSC then had to begin afresh. In 2013, a judicial conduct tribunal was established under the new amendment to the JSC Act that had come into force in the meantime. But before it even began, the constitutionality of the process was challenged — by Jafta and Nkabinde. Their challenge failed in the high court but they appealed all the way to their own court. They even applied for the rescission of the judgment of the Constitutional Court that rejected their appeal.
Then, just as the tribunal was to get under way again in 2018, Hlophe applied for the recusal of one of the panel’s members and a new panel needed to be appointed. Then there was a squabble about fees with Hlophe’s attorney, Barnabas Xulu, that accounted for a further delay.
This week it was the unavailability of Jafta, who was unwell, and Hlophe’s UK-based counsel, Courtenay Griffiths QC. The tribunal is now scheduled for December 7.