Friendship with Hlophe made judge reluctant to lay complaint

Western Cape Judge President John Hlophe. Picture: African News Agency (ANA)

Western Cape Judge President John Hlophe. Picture: African News Agency (ANA)

Published Dec 8, 2020

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Constitutional Court Justice Chris Jafta has told the Judicial Conduct Tribunal how his friendship with Western Cape Judge President John Hlophe made him reluctant to lay a complaint over Hlophe’s alleged attempt to influence him and fellow Justice Bess Nkabinde back in 2008.

Hlophe is accused of having tried to improperly influence Jafta and Nkabinde to help decide in favour of former president Jacob Zuma in the arms deals saga 12 years ago.

Jafta indicated to the tribunal on Tuesday he still did not regard himself as a complainant in the saga.

He recounted how Hlophe called him in March 2008 and set up a meeting in which they discussed wide-ranging issues, including professional privilege in relation to the seizure of documents by law enforcement agencies in the Zuma saga.

Hlophe is represented by renowned British criminal defence advocate Courtenay Griffiths, who asked Jafta to explain his impression of what Hlophe meant when he said “sesithembele kinina” when they discussed the Supreme Court of Appeal ruling on the Zuma matter.

“My understanding of it was in the context that, here is a judgment of the Supreme Court of Appeal which, which I recollect in his words, had gotten the law incorrectly. So in that context, I understood him to mean that the Constitutional Court as the highest court will have to put right that which was wrong in the judgment of the SCA,” Jafta said.

Griffiths pushed the judge to concede that Hlophe’s concerns during their discussion were related to the law and not Zuma.

Jafta also recounted how he was told by Nkabinde in April that Hlophe was trying to set up a meeting with her the following day, apparently to discuss the case.

“She told me that the Judge President had called her to arrange a meeting with her. She reported that he wanted to see her to talk about the privilege issue. She was wondering what he meant,” he said.

Jafta told the tribunal he had not thought of laying a complaint against Hlophe, despite him and Nkabinde being told by then Chief Justice Pias Langa and then Deputy Chief Justice Dikgang Moseneke to lodge it in May 2008 after they became aware of Hlophe’s actions.

“When they said it looks like there is some impropriety, we discussed that and I said, well, if there was some impropriety I believe I dealt with the matter quite effectively and that I am not going to lay any complaint.

’’During that discussion, they said that ‘it may be that you have dealt with it effectively at a personal level but what you have just confirmed to us constitutes also a threat to the court as an institution and we as the lead feel duty bound to take up the matter’,” he said.

In June that year, Langa lodged a complaint with the Judicial Service Commission (JSC) against Hlophe.

Jafta said he and Nkabinde had made it clear in a joint statement they did not view themselves as complainants and had no intentions to make statements on the matter as requested by the JSC.

He said he did not want to complain against Hlophe because it would be undesirable.

“What complicated the matter here was that the Judge President (Hlophe) is my friend and I thought it would not be desirable for me to do that. During the deliberations, I pointed out that if the matter goes further and gets taken up by the JSC, it might be inevitable for me to testify and I was uncomfortable to do that,” Jafta said.

On Monday, the tribunal commenced its hearings with evidence from a language expert, Professor Langalibalele Felix Mathenjwa, who was brought by Hlophe’s defence to analyse the meaning of “sesithembele kinina”.

He testified the phrase had five possible meanings and Jafta could have misunderstood it as he was not a first-language speaker of isiZulu.

The meanings included: “you are our last hope”, “we rely on you”, “we pin our hopes on you”, “we put our confidence in you” and “we trust you”.

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Crime and courts