Retired Judge Joop Labuschagne, chairperson of the Judicial Conduct Tribunal set up to hear the decade-old explosive complaints against Judge Hlophe, yesterday adjourned the matter to a date yet-to-be decided.
Judge Hlophe was being investigated over allegations he sought to improperly influence two Constitutional Court justices, Bess Nkabinde and Chris Jafta, in former president Jacob Zuma’s case in 2008.
Justice Nkabinde and Justice Jafta complained that Judge Hlophe visited them in their chambers and tried to influence them to rule in Zuma’s favour.
If found guilty by the tribunal, Judge Hlophe could become the second judge in democratic South Africa to face impeachment.
Another tribunal recommended three months ago that Judge Nkola Motata be impeached for gross misconduct.
The postponement yesterday in Judge Hlophe’s matter was announced after Free State Judge Cagney Musi, one of three members of the panel, revealed that he was recusing himself from the tribunal.
Judge Musi referred to an application Judge Hlophe made for his recusal via an affidavit he filed to the tribunal.
The latter wanted Judge Musi recused because he had allegedly made some disparaging remarks while chit-chatting at a social gathering graced by other judges in KwaZulu-Natal in July last year.
Judge Musi said that prior to the formal application, Judge Hlophe called him last month and had spoken to him about the recusal request in the absence of other members of the panel. Citing this call in particular, Judge Musi said: “Having considered the manner in which this whole issue has unfolded I do not think the judiciary needs this at this stage. I have therefore decided that the best course in this matter is for me to recuse myself and allow another judge to be appointed in this matter.”
He said he told Judge Hlophe during the call that he was not prepared to recuse himself because his allegation was based entirely on hearsay.
Judge Hlophe’s attorney, Barnabas Xulu, told Independent Media that the postponement was not the result they sought in their application. “We were not looking for a postponement; let’s get that right,” said Xulu.
“We wrote him a letter asking him to recuse himself so that the Chief Justice could appoint someone in his place to carry on with the matter. It is a wrong approach to say we went there to ask for an adjournment. They know the issues that they have not resolved with the Judge President (Hlophe).”
Recalling that the tribunal was postponed indefinitely in 2013 following requests by Justices Nkabinde and Jafta, Xulu said: “This time we were trying to avoid that, (so) we said ‘Judge recuse yourself'.”
He insisted that their application merely sought Judge Musi’s recusal, nothing else. He said this would allow the matter to proceed as scheduled.
The tribunal was due to sit for two weeks in Sandton. “Because he had not recused himself, we had to make a formal application (yesterday). It’s not an application for postponement, no,” Xulu said.
Judge Hlophe has been ready for the tribunal for a long time, the attorney said. “In terms of being ready, you know, we’ve always said we’re ready (and that) they must just get their act together.”
Justice Johann Kriegler, retired justice of the Constitutional Court and chairperson of non-profit organisation Freedom Under Law, blamed the postponed squarely on Judge Hlophe.
“Freedom Under Law is disgusted but not surprised. Hlophe has attempted for more than 10 years to defeat the attempts to bring him to justice. This is just the latest attempt,” said Justice Kriegler.
Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution, said the postponement was worrying because the matter has dragged on for so long. “The issue is that it is of great concern that the matter is delayed yet again,” he said. “This is such an important issue that it needs to be brought to finality sooner rather than later. While we recognise and respect the reason for the postponement, we hope that the matter will be able to resume as soon as possible,” Naidoo said.