Sunday Times

New move to clip Hlophe’s wings

JSC asked to delay judgeship panel so as not to ‘taint’ process


● Pressure is mounting on the Judicial Service Commission (JSC) to delay interviewi­ng potential judges for the Western Cape High Court until it has decided whether or not the division’s judge president, John Hlophe, is guilty of gross misconduct.

Western Cape premier Alan Winde and the Cape Bar Council have asked the JSC to suspend Friday’s interviews, said commission spokespers­on Dali Mpofu SC.

The Judicial Conduct Tribunal (JCT) decision that Hlophe was guilty of gross misconduct, delivered last Saturday, must still be confirmed by the JSC, and until it does the judge president is entitled to take part in the interviews.

The Cape Bar Council said in a statement that the JSC should not hold its interviews as scheduled but should use the day to deliberate and decide on the tribunal’s report.

“In addition, the interview process should resume only after the JSC has made its finding on the JCT’s report … Such a course will also ensure that the serious findings of the JCT do not taint the judicial appointmen­t process to the Western Cape High Court,” said the statement.

Mpofu confirmed that the JSC responded to Winde by requesting a meeting tomorrow evening, and said that a decision on whether to postpone the Western Cape hearings would be communicat­ed afterwards.

Under the constituti­on, the premier and judge president are members of the JSC when it appoints judges to a provincial division. A Supreme Court of Appeal judgment also says the JSC is not properly constitute­d without the premier or an alternativ­e when considerin­g matters related to that particular court. This would leave any appointmen­ts made without Winde or his alternativ­e present open to court challenge.

Though the tribunal’s findings could lend force to a decision to impeach Hlophe, it is the decision of the JSC that matters. In terms of the Judicial Service Commission Act, the JSC must first solicit representa­tions from the relevant parties.

It is understood the JSC had planned to meet on June 4 to consider the tribunal’s findings, and has asked for submission­s in the meantime. On Monday, Mpofu said the commission was treating this tribunal decision like any other. He also said Hlophe could not, in law, be suspended until the commission has made its decision.

When the tribunal was establishe­d in 2012, the commission did not advise suspension for Hlophe, as it is entitled to do under the JSC Act, he said. The only time it may lawfully do so now, relying directly on section 177(3) of the constituti­on, is after the JSC makes its decision.

“In short, the section 19 bus left the station in 2012 and the direct section 177(3) bus has not yet arrived,” said Mpofu on Friday.

Hlophe’s lawyer, Barnabas Xulu, said in a statement that Hlophe fundamenta­lly disagrees with the tribunal’s findings — listing a number of grounds — and will address his concerns in “the appropriat­e forum” in due course.

The tribunal delivered its finding after assessing evidence that Hlophe had improperly sought to influence the outcome of a pending Constituti­onal Court judgment — and had attempted to influence two of the highest court’s justices to violate their oaths of office.

The Constituti­onal Court pending judgment related to corruption charges against

Jacob Zuma, who at the time was ANC president. It was widely believed that the judgment would determine whether he would go on to be president of the country.

This all happened in 2008. In May of that year, an unpreceden­ted complaint was made by all the justices of the Constituti­onal Court to the JSC. They said Hlophe had twice visited their court — once to see acting justice Chris Jafta and once to see justice Bess Nkabinde.

During these visits, he raised the Zuma case and said a number of things about it, said the tribunal. He said the Supreme Court of Appeal’s (SCA) judgment was wrong, that there was no case against Zuma, and that Zuma was being persecuted just as he, Hlophe, had been persecuted.

To Nkabinde, he “bragged” about his political connection­s, the tribunal said, saying people were going to lose their jobs once Zuma became president.

To Jafta, after saying the SCA had got it wrong, he uttered the now-infamous words “sesithembe­le kinina” — we are pinning our hopes on you.

Hlophe denied some of the statements Nkabinde alleged, but the panel said that on a balance of probabilit­ies it believed her.

Why was the discussion “so politicall­y laden”? asked the panel. “She was told about Mr Zuma’s political ambitions and prospects, cabinet ministers concerned with judicial appointmen­ts, National Intelligen­ce etcetera. What had all this to do with justice Nkabinde, or any judge, for that matter?”

The tribunal — a three-person panel chaired by retired judge Joop Labuschagn­e — said the “irresistib­le” inference was an attempt to influence.

The panel also emphatical­ly rejected Hlophe’s argument that there was nothing wrong with judges talking to each other about pending cases and that it “happens all the time”. He had argued that it was acceptable as long as the judges were discussing legal principles, and not the facts of the case.

The panel said it was “trite” that judges may not discuss the merits of a case with the judge who heard it while judgment is pending, unless discussion is initiated by the judge who is writing the judgment.

“That principle is deeply rooted in the legal profession. It is instilled through years of practice, either as an advocate or as an attorney, from whose ranks most judges are drawn.” A judge for 13 years by then, Hlophe was “expected to have been aware of it and, on balance, he was.”

The interview process should resume only after the Judicial Service Commission has made its finding on the [tribunal’s] report

Cape Bar Council

 ?? Picture: Oupa Nkosi ?? Judge president John Hlophe’s fate rests with the JSC, to which a tribunal’s finding against him has been referred.
Picture: Oupa Nkosi Judge president John Hlophe’s fate rests with the JSC, to which a tribunal’s finding against him has been referred.
 ??  ?? Alan Winde
Alan Winde
 ??  ?? Dali Mpofu
Dali Mpofu

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