Western Cape Judge President John Hlophe’s long-awaited hearing relates to his approach to two Constitutional Court judges, Chris Jafta and Bess Nkabinde, in 2008 – during the early stages of Jacob Zuma’s Stalingrad legal strategy with regard to alleged arms deal corruption.
Both judges, who would be ruling on the Zuma matter, said they had been left with the impression that Hlophe had been trying to influence them, with Jafta only coming to this conclusion later.
On Tuesday, Hlophe speculated on what might have occurred during a 28 May 2008 meeting where Constitutional Court judges resolved to issue a joint statement with regard to his conduct and how this might threaten the independence of the judiciary.
The following day, more than 12 years ago, a complaint was lodged against Hlophe with the Judicial Service Commission (JSC) by a collective of Constitutional Court judges.
It was during this meeting in May 2008, Hlophe postulated, that the meaning of an isiZulu phrase – “sesithembele kinina” (loosely, “you are our last hope”) – that he had used with Jafta, had been “assigned a totally wrong meaning”.
Jafta, Hlophe insisted, had never understood the phrase to mean anything other than a generalised statement that Jafta and other judges of the apex court would have to correct a “wrong” ruling by the Supreme Court of Appeal (SCA) with regard to the legality of the seizure of Zuma’s documents by the National Prosecuting Authority (NPA).
This legal principle of “privilege”, insisted Hlophe on Tuesday, was being discussed far and wide in legal circles and even among judges themselves, so he saw nothing untoward in raising it with Nkabinde and Jafta back in 2008.
It was then that evidence leader Ivy Thenga confronted Hlophe.
“I want to say to you, you want to speculate and give this forum your speculation when it suits you and when it doesn’t, you want to refrain and want to step back and say, ‘I can’t speculate’,” she set out calmly.
She asked Hlophe why Jafta would correctly predict that Hlophe, in arranging a meeting with Nkabinde, would raise the Zuma matter.
“I cannot speculate,” Hlophe replied.
“Why such a coincidence? Judge Jafta sensitises Judge Nkabinde that this might happen and it happens. Why such a coincidence?” asked Thenga.
“I cannot speculate,” Hlophe repeated.
The Western Cape Judge President’s defence throughout has been that he was misunderstood, that others misinterpreted his words, that they were not native Zulu speakers and so could not have understood the subtle meaning or his intentions at the time.
Back in 2008, no one could have predicted that in 2020 Hlophe would find himself at the centre of another controversy where his actions would be “misremembered” or “misinterpreted” – this time in relation to the alleged assault of his colleague Judge Mushtak Parker.
There are striking similarities in both cases.
In 2008 Hlophe approached two ConCourt judges, who felt uncomfortable with the conversation, and mentioned it to their nine colleagues, who collectively agreed to lodge a complaint against Hlophe with the JSC.
In 2019 Parker, immediately after the alleged assault by Hlophe, informed fellow judges. He went as far as deposing to an affidavit to this. Parker had, according to the sworn affidavits of 10 other judges in the division, spoken to several people about the attack during the course of more than a year.
One of these, Deputy Judge President Patricia Goliath, consulted her boss, Chief Justice Mogoeng Mogoeng, and lodged a complaint against Hlophe.
Parker, who has since been suspended, will face a Judicial Conduct Tribunal for the conflicting versions he provided with regard to the alleged assault by Hlophe.
On Tuesday, while Jafta said that he did not initially think that Hlophe’s visit had been an attempt to influence him with regard to the Zuma matter, Nkabinde insisted, “My sense was that he was attempting to influence me.”
She said that when Hlophe had raised the Zuma matter, as she had been warned by Jafta he would, she had “rebuffed him”.
Hlophe denied this outright, saying that he had indeed discussed Zuma and “politics” with Nkabinde.
“I talk politics, there is nothing wrong with that. I am not politically naive,” Hlophe said when confronted about why he had spoken about Zuma.
He denied that Nkabinde had “rebuffed” him, saying: “We spoke about privilege. We did not speak about the facts… the phone rang, we had coffee there was no question of being rebuffed.”
He admitted, however, that he had said that Zuma, like himself, was being “persecuted”.
Jafta, who has been a friend and colleague of Hlophe’s for more than three decades, said he had not thought Hlophe’s visit had to do with Zuma but with the legal matters and jurisprudence rated to the SCA decision in favour of the NPA.
“He called me the day before to say he would be up in Joburg and he would like to get some feedback on my experience in the court and I said, yes I would see him,” Jafta, who joined virtually, told the tribunal.
The meeting had lasted about an hour, said Jafta, and had been “friendly”. It was Hlophe who had brought up the Zuma matter, one which Jafta was hearing.
Hlophe’s legal representative, Courtenay Griffiths, QC, asked Jafta whether at the conclusion of the meeting Hlophe had mentioned “any kind of threat or intention to intervene in court deliberations”.
To which Jafta replied, “Not at that stage, no.”
Jafta set out to the tribunal that his understanding in the context was that there had been a judgment by the SCA which Hlophe had said “had got the law incorrectly”.
“So, in that context, I understood to mean the ConCourt, as the highest court, will have to put right that which was wrong in the judgment of the SCA,” explained Jafta.
It was only later when talking to Nkabinde and she mentioned that Hlophe had called her to arrange a meeting that Jafta said he had been “reminded of his own discussion” (with Hlophe).
“She [Nkabinde] was wondering in what context the JP [Judge President] would talk to her about privilege… I said he might talk about the Zuma cases as he had done with me,” Jafta told the tribunal.
Jafta concurred with Hlophe’s counsel that he was not a complainant in the matter and agreed that, “the first time any thought of making a complaint was brought to your attention on 28 May 2008 when you met with the CJ [then Justice Pius Langa] the DCJ [Dikgang Moseneke] and Nkabinde”.
“Throughout, you have been uncertain in reality whether there is a basis for the complaint,” Griffiths put it to Jafta
To which he replied: “I did not think there should be a complaint by me and this was explained to the CJ and the DCJ because I looked at the matter as at that stage and I had to draw some inferences which I did not draw earlier on.”
It was only “after I had the report from Justice Nkabinde that I put together some facts and drew some inferences from those facts”, said Jafta.
Jafta said he had told Langa and Moseneke that he felt he had dealt with the matter on a personal level and would not be laying a complaint.
The CJ and the DCJ had said that while Jafta might have dealt personally with Hlophe, what the Judge President allegedly raised “constitutes a threat to the court as an institution and we as leaders feel duty-bound to take up the matter with the JSC”, Jafta recounted.
Jafta said he had thought it would be “undesirable” for a judge to testify in the first place and that Hlophe was a friend.
“During the deliberations I pointed out if the matter goes further, if it were taken up by them with JSC it might be inevitable for me to testify and I was not comfortable with that,” said Jafta.
Asked by evidence leader Thenga how Jafta had felt about Hlophe’s introduction of the Zuma matter after they had discussed generic matters like customary law and transformation of the judiciary Jafta replied, “There was some level of discomfort.”
“Even though I conceived the discussion to be innocent, my fear was if we go into details the JP might express views on some principles which I might find attractive for the resolution of the case and in that way I was reluctant that I might end up getting these ideas from someone else who was not sitting on the matter,” Jafta candidly admitted.
Hlophe’s tribunal is chaired by retired judge Joop Labuschagne, SCA Judge Tati Makgoka and attorney Nishani Pather.
Hlophe is represented by Courtenay Griffiths, QC, and advocate Thabani Masuku.
Advocate Thandi Norman represented Judges Jafta and Nkabinde while advocate Gilbert Marcus appeared on behalf of the remaining Constitutional Court judges. The lawyers, after hearing witnesses and their cross-examinations on Tuesday will hear lawyers’ arguments on Thursday 10 December. DM
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