The first attempt came early on the third day of proceedings on Friday 11 December when Griffiths, without prior notice, informed the tribunal that Hlophe’s team would be objecting to advocate Gilbert Marcus – representing Constitutional Court justices – presenting argument. 

After a 12-year-delay Hlophe’s tribunal hearing began on Monday 7 December and while final arguments were heard on Friday, it will resume on Tuesday 15 December after a late-afternoon, last-minute request by Hlophe’s legal team.

This move, Marcus cautioned the panel, was “a scarcely veiled attempt to set up a potential review” [of the findings] and, “I can only suspect we will be presented with something new.”

Hlophe’s tribunal is chaired by retired judge Joop Labuschagne, Supreme Court of Appeal (SCA) judge Tati Makgoba and attorney Nishani Pather.

At the start of the hearing on Friday Griffiths argued that the interests of the late Chief Justice Pius Langa, former Deputy Chief Justice Dikgang Moseneke, as well as the remaining Constitutional Court justices, were “irrelevant” with regard to the Hlophe matter as they had not been called as witnesses.

“They are not involved in bringing the prosecution, that is not their role. What right do they have to be making an oral argument at this stage?” Griffiths asked.

Quoting former Chief Justice Pius Langa, Marcus responded that Hlophe’s approaches to Constitutional Court justices Chris Jafta and Bess Nkabinde in 2008, allegedly to influence them in favour of Jacob Zuma at a court matter, “strikes at the very core of the Constitutional Court as an institution. Every judge has a manifest interest and duty in dealing with an improper attempt to influence any other judge.”

Marcus said the SCA, in Freedom Under Law vs Acting Chair of the JSC, had recognised the stances of the justices and that the matter was of fundamental public interest.

Advocate Thandi Norman, representing Jafta and Nkabinde, and Marcus both remarked it was “astonishing” and “without merit” that Hlophe’s legal team sought to make this argument at such a late stage in the hearing.

Until then it had never been disputed that the Constitutional Court justices were complainants, both advocates argued, whereupon Labuschagne swiftly dismissed Griffiths’ objection.

The second attempt to find a legal loophole also occurred towards the end of the long day when Hlophe’s team sought to cast doubt on the charge sheet itself, suggesting it contained material irregularities and so Hlophe should be cleared.

Both Norman and Marcus lashed out at Griffiths’ team, saying it was “the height of opportunism” to advance an argument “on a spurious basis” at the close of the proceedings.

It was unworthy, said Marcus “that an argument of this sort at this stage should be advanced on behalf of a judicial officer with the seniority of a judge president” and it was an attempt to “nullify these proceedings”.

The charge sheet, he reminded all present, had been read out at the start of the proceedings, which was when Hlophe would have had the opportunity to object. 

“One would have thought that was the opportunity for my learned friend to say, ‘Hold on, that charge sheet is not valid, we are not here to face an invalid charge sheet.’ Nothing of the sort.

“It is a scarcely veiled attempt to set up, at the 11th hour, a potential review and is wholly without merit.” 

Earlier, Marcus argued that the established facts of the Hlophe matter “point to a finding of gross misconduct”.

On Hlophe’s own version of events, a prima facie case could be established, he added. 

“What is fundamental is the propriety of one judge from a different division discussing the merits of a pending appeal with two judges of the highest court, not only discussing, but presenting strongly held views,” argued Marcus. 

Hlophe’s visits to Jafta and Nkabinde had been premeditated, said Marcus, adding that Hlophe had discussed the merits of the Zuma case on two separate occasions, discussions that he had initiated.

“He made it clear he thought the SCA had got it wrong [in the Zuma matter] and in both cases he expressed his opinion on privilege and he said the Constitutional Court had to decide the matter ‘properly’.”

Such a conversation would amount to gross misconduct by any of the standards which applied, and either of the conversations, taken on their own, would be “sufficient to establish the complaint. Cumulatively the conduct is even more egregious,” said Marcus.

Had the National Prosecuting Authority witnessed such conduct, said Marcus, it would be “justifiably outraged”.

Over and above this, Hlophe’s “scurrilous and outrageous attacks on every one of the justices, without a modicum of evidence” should not be underestimated.

Hlophe’s legal team objected, saying he was not facing charges relating to his attacks on the judiciary and that a separate complaint in this regard should have been lodged.

Marcus said Hlophe’s approaches to Jafta and Nkabinde were not innocuous conversations over coffee, while Hlophe’s team argued that the JP was “entitled to walk into the office of a colleague, he was entitled to watch TV, read newspapers and scholarly articles for a chat”.

After Labuschagne had already adjourned the hearing on Friday, Griffiths tossed in a last-minute request that the team wanted to present further arguments in order to be “helpful” to the panel.

“There will be no new matter. That is quite clear. You want to argue your case in answer to what has been said today and surely we will not get a new argument?” asked Labuschagne.

“We will be as helpful and clear as possible,” replied Griffiths. DM