South Africa

Hlophe guilty of 'gross misconduct' for trying to influence two ConCourt judges in Zuma case

Hlophe guilty of 'gross misconduct' for trying to influence two ConCourt judges in Zuma case

A Judicial Conduct Tribunal has unanimously found that Western Cape judge president John Hlophe “improperly attempted to influence” two judges of the Constitutional Court.

Finding him guilty of “gross misconduct”, the tribunal’s report has now been submitted to the chairperson of the Judicial Services Commission which will determine his fate.

The complaint against Hlophe was lodged by 11 Constitutional Court judges more than 12 years ago after judges Bess Nkabinda and Chris Jafta reported that Hlophe had visited them separately in their chambers to “discuss” pending judgments in cases pertaining to the legality of search and seizures in the Zuma/Thint corruption matter.

They complained that he had improperly attempted to influence the outcome of the matter in favour of Zuma.

Hlophe hit back, accusing them of undermining the constitution and his rights to fairness.

He later claimed a “political motive” and a “sinister plot” against him.

What followed was a legal ping-pong battle which lasted more than eight years with an eventual ruling by the Supreme Court of Appeal, paving the way for the tribunal to begin its work in July 2018.

But Hlophe successfully sought the recusal of one of its original members and a dispute over who would pay for his legal fees meant that it only began in December last year.

Hlophe used “unreasonable delay” as part of his weaponry to attack the tribunal, arguing that his rights had been impinged.

But the tribunal said this was “opportunistic and untenable” because he had, in no small measure, been the cause of it.

He also claimed that nothing prohibited him from discussing pending cases with other judges “as long as they do not discuss the facts”, but only legal principles and jurisprudence.

Former chief justice Pius Langa countered this saying it was an “elementary principle of judicial ethics”.

And judges of one division were precluded from discussing the merits of the matter with judges of the highest court where judgment is still pending.

Judges Nkabinda and Jafta, in their testimony, both spoke about their levels of discomfort about Hlophe's approach to them.

The tribunal noted that as members of the legal profession it was “also their lived experience”.

“We do not know whether Judge President Hlophe ever practised law as either an advocate or an attorney prior to his elevation. However, by 2008, he had  been a judge for over 13 years, five of those as a judge president. He is expected to have been aware of it and, on the balance, he was.”

The tribunal said the essential facts of the matter were common cause. It said judges Nkabinde and Jafta were credible witnesses and, while it made no adverse credibility findings against Judge Hlophe, where there were material differences in his evidence against theirs “we prefer the latter”.

“To each of the judges, he expressed strong views on the issue of privilege (of the seized documents).

He said to Judge Jafta that the issue should be decided “properly” and that “you are our last hope”.

Similarly he told Judge Nkabinde that there was “no case” against Zuma.

While he and Judge Jafta were friends, this was not the case with Judge Nkabinde. That meeting was preceded by a telephone call the day before.

And during the meeting he bragged about his political connections followed by a “subtle threat”: people were going to lose their jobs once Zuma became president.

“The lingering question is this: why was Justice Nkabinde told all these. Why was the conversation so politically laden?

“It seems to us (that) it was to impress upon her that he had political connections, with the hope that when he discussed the Zuma/Thint matters, this would weigh heavily on her ... it points to an attempt to influence.

“Seen in this light, it is difficult to accept his version that his visit was merely to congratulate her on her appointment to the Constitutional Court.

“When one considers his conversation with Judge Jafta, he appeared to have been on a mission.”

The tribunal criticised Hlophe for attacking fellow judges, accusing them of dishonesty and making demeaning and most unfortunate comments about them.

“We consider it our duty to vindicate the integrity of the justices of the Constitutional Court, in particular Chief Justice (Pius) Langa, Deputy Chief Justice (Dikgang) Moseneke, Judge Nkabinde and Judge Jafta whose integrity has been called into question by Judge President Hlophe’s unfounded and scurrilous attacks. They acted with honour to protect the institutional integrity of the apex court,” it said.

It found that he had improperly attempted to influence the two judges, that his conduct seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the court and it threatened public confidence in the judicial system.

“In our view, this constitutes gross misconduct.”

The tribunal comprised retired judge Loop Labuschagne, Judge Tati Makgoka of the Supreme Court of Appeal and Nishani Pather, a practising attorney.

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