Western Cape Judge President John Hlophe. File picture: Ayanda Ndamane/African News Agency (ANA)
Western Cape Judge President John Hlophe. File picture: Ayanda Ndamane/African News Agency (ANA)

Tribunal deliberates on Hlope’s comments, conduct

By Don Makatile Time of article published Dec 13, 2020

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Johannesburg - After a week-long deliberation it would appear the 12-year-old case against Judge John Hlophe will finally be brought to a close by the Judicial Conduct Tribunal that was set up in 2013 to probe the matter.

Held over five days last week at the Premier Hotel, OR Tambo International Airport in Kempton Park, east of Joburg, the tribunal conducted hearings on the complaint lodged by Justices of the Constitutional Court against Hlophe, President of Western Cape Division of the High Court.

On Friday, parties on both sides of the matter made their closing arguments at the tribunal.

Judge President Hlophe faces a charge of gross misconduct after he’d met with two Judges of the Constitutional Court – Justice Chris Jafta and Bess Nkabinde in March/April 2008, allegedly with the intention to influence their judgment over the pending Zuma/Thint matters before the apex court at the time.

The meetings, both of which Judge President Hlophe admittedly initiated, are considered an “improper approach”.

Judge President Hlophe is on record to have told Justice Jafta, an old friend and colleague of his from their previous lives as academics at the then University of Transkei (Unitra) that “there was no case against (former president Jacob) Zuma who was merely being “prosecuted as I was”.

Justice Jafta, who gave his evidence early in the week, said he was uncomfortable during the one-and-a-half-hour meeting when the conversation moved to the Zuma/Thint cases that were pending before the Constitutional Court.

Judge President Hlophe’s parting shot after his meeting with his old friend was the Nguni phrase: Sesithembele kinina – we pin our hopes on you/ you are our last hope.

In a lunch meeting with Justice Nkabinde, Justice Jafta warned the former that in the meeting the Judge President had asked for with her, the Zuma/Thint matter was likely to come up, and, true to form, when the meeting happened two days after she’d taken the call from Judge President Hlophe, the subject was broached.

Justice Nkabinde told the tribunal that, in her own words, she snapped when her visitor told her “Mr Zuma’s case was very important”.

The judge president is said to have immediately apologised: “No, my sister, I’m not trying to influence your judgment.”

Justice Nkabinde was so perturbed by this improper approach that left her thinking the judge president had “overstepped the line of courtesy” and had tried to influence her that she sought the counsel of Justice Yvonne Mokgoro.

Evidence leader Ivy Thenga said on Friday: “It is submitted that for Hlophe JP to start telling Judges Nkabinde and Jafta that there was no case against Mr Zuma knowing that the court was seized with the matter, was completely improper and gross misconduct.

“In conclusion, it is submitted that looking at the evidence as a whole it was clear that when Hlophe JP said ‘ Sesithembele kinina’ he was trying to influence the two Justices.”

Advocate Gilbert Marcus, acting “for all the justices of the Constitutional Court, except for Jafta and Nkabinde”, argued that there could only be one meaning for the Nguni expression: “You are our last hope to put right what the Supreme Court of Appeal got wrong.”

The Tribunal first sat in October 2013. Both Jafta and Nkabinde failed to appear then.

It is comprised of retired Judge of the Gauteng Division of the High Court, Judge Joop Labuschagne as Tribunal President, Judge Tati Makgoka, a Judge of the Supreme Court of Appeal (SCA) as well as Nishani Pather, a practising attorney.

It started with hearings of the complaint lodged against Judge President Hlophe that he made attempts to improperly influence the two judges.

Hlophe had told Jafta and Nkabinde that he was also being persecuted, like Zuma. Hlophe described his feelings on the Zuma cases as “strongly held views”.

The integrity of the Constitutional Court was being threatened by the conduct of Judge President Hlophe.

A judge must always act honourably and the conduct of the judge president was at odds with this expectation, the Tribunal heard.

Both sides argued the concept of judicial independence to suit their respective narrative.

Meetings to debate issues between judges were collegial and par for the course, the Hlophe team argued. The prosecution argued that a judge sitting with a pending judgment was “in a sacred space” and any colleague approaching such a judge should do so only upon invitation.

Citing Section 165 (5) of the Constitution that holds that “no judge must interfere in the judgment of another judge”, Judge Makgoka said gross misconduct “is serious, possibly criminal”.

Thabani Masuku SC, for Hlophe, argued that private debates between colleagues are encouraged and such discussions, happening in chambers, are confidential.

Judge President Hlophe himself said he was not at liberty to disclose the full extent of what transpired in chambers as he did not wish to betray the trust of their conversation.

Advocate Thandi Norman, acting for Jafta and Nkabinde, quoted Jafta testifying that he was reluctant to be swayed by the opinion on the matter of “someone who was not sitting” on the case.

Sesithembele kinina was used in conversation with just one justice – Jafta, not the two, Norman corrected.

For Hlophe to start telling the two judges that there was no case against Mr Zuma was improper and constituted gross misconduct, it was argued further.

Thembalihle Sidaki argued there was no case against Hlophe.

In addition to Sidaki, the defence team included leader Courtney Griffiths QC, Masuku SC and Barnabas Xulu.

Was the tribunal a properly constituted forum, Sidaki questioned, referring to Jafta as a recalcitrant complainant and Nkabinde a vacillating one, to which Norman, for Jafta and Nkabinde, took exception.

The evidence of the two was consistent, credible and reliable, Norman urged the tribunal to find.

April 2009 and July 2009, they appeared before the Judicial Service Commission, respectively.

It is the Judicial Service Commission that is able to remove a judge for, among other reasons, gross misconduct that Hlophe is charged with.

There are two concurrent charge sheets – April 1, 2013, and another on August, 28 2020.

Evidence leader Thenga would later explain that there were no material differences between the two charge sheets, except the name of advocate Gilbert’s new assistant, advocate Michael Mbikiwa. Marcus said last week Wednesday Thenga had read out the charge sheet, none of Hlophe’s team objected to its invalidity.

The conduct of the Hlophe team was nothing but obstructionism, Marcus said, and he urged the tribunal to take exception to that.

Hlophe was never informed of the changes to the charge sheet. The two do not disclose an offence.

Which one of the two charge sheets is he required to meet?

Hlophe was not in a stronger position such that he could influence the two Constitutional Court judges, neither were they in a position of weakness. Judgment is reserved.

Sunday Independent

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