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Zuma and Hlophe reach dead end in 13-year legal arms de...

South Africa

JUDICIARY IN CRISIS

Hlophe/Zuma: Stalingrad grandmasters reach simultaneous cul-de-sac after 13-year abuse of legal system

Western Cape Judge President John Hlophe. (Photo: Felix Dlangamandla / Daily Maverick)

For 13 years John Hlophe and Jacob Zuma have been bound by a legal umbilical cord attached to newly-democratic South Africa’s original sin — the Arms Deal.

Playing Western Cape Judge President John Hlophe, one of two South African grandmasters of the Stalingrad legal strategy, this week was advocate Tembeka Ngcukaitobi, representing the Judicial Services Commission in a virtual sitting of a full bench of the North Gauteng high court in Johannesburg.

Hlophe has applied to review the Judicial Conduct Committee’s finding of gross misconduct and its referral of the matter to Parliament for a vote on his impeachment.

On Wednesday, judgement was reserved in the matter and Hlophe goes back to run the division while finding himself on the brink of impeachment.

In a curious case of cosmic symmetry, over in the Pietermaritzburg high court, former president Jacob Zuma lost his bid to have prosecutor Billy Downer booted off the over decade-long Arms Deal case. Zuma’s trial will commence now in April (apparently). 

For 13 years John Hlophe and Jacob Zuma have been bound by a legal umbilical cord attached to newly-democratic South Africa’s original sin — the Arms Deal.

On Tuesday Tembeka Ngcukaitobi set out that Hlophe, unanimously, had been found guilty by the JSC of violating the foundational law of the country — the Constitution — through gross misconduct. 

This in that he had tried to influence two constitutional court judges in 2008 on a matter involving Zuma’s implication in the Arms Deal.

Judge Hlophe has actually interfered with the independence of the courts. Judge Hlophe has eroded public confidence in our system of adjudication,” said Ngcukaitobi.

He added there was “no greater threat to judicial independence than an internal threat. If the judiciary is eroded, it is extremely difficult to police. It can be corrosive.”

The matter had dragged on for 13 years and it was time it was put to bed.

What that meant, said Ngcukaitobi, was that the JSC had fulfilled its function.

“It has decided that Judge Hlophe’s conduct is impeachable. The matter must now go to the politicians. They must decide whether or not Judge Hlophe must be removed.”

In a late-night briefing on 8 September 2021, and in preparation for the potential impeachment vote by the National Assembly, parliament’s committee on justice and correctional services began tightening the procedural legal nuts and bolts of the process.

The committee met with legal advisers who stated clearly that the guilty verdict by the JSC could not be altered and would stand during the impeachment vote process. 

The role of the National Assemly was “that of accountability and strictly circumscribed” members were informed. No new inquiry would be conducted, as the first stage of the impeachment process — the guilty verdict by the JSC — was set in stone.

Hlophe’s lawyer, Thabani Masuku, argued this week that parliament should not just “rubber stamp” the findings of the JSC and “should know what they were voting for”.

All Hlophe can hope for, should the North Gauteng high court rule that he face an impeachment vote, is that the voting will swing in his favour. If so, he walks out and back into the job, if not, it’s a career nosedive for the history books.

Masuku this week essentially argued that the JSC did not have the required majority to find his client guilty and that the panel had been irregularly constituted. 

In the meantime, he said, Hlophe “now sits with the feeling that his right to be assumed to be a judge of integrity and wisdom is under threat”.

Besides which, Masuku jauntily argued, it was not Hlophe’s fault the JSC had been supine for so many years, allowing the matter to drag on. His client, on the other hand, had simply been defending his right to due process. 

The court heard on Tuesday that Hlophe’s desperation to escape impeachment was not based on sound legal argument but rather on an attempt to disqualify every available judge in the country from upholding the JSC decision.

Hlophe, said Ngcukaitobi, was “gunning for a regime in which he is immunised from taking the consequences of his action.”

The Judge President was seeking to exploit the long delay in the finalisation of the complaint against him to avoid accountability and “for selfish reasons”.

We need reminding at this stage that taxpayers are facilitating the deep legal fees kitty Hlophe and his legal team have accessed. So far, about R3.2-million has been paid out over Hlophe’s 13-year challenge of his misconduct in the Zuma matter. 

However, if found guilty Hlophe will not have to repay.

Writing in News24, legal journalist Karyn Maughan revealed that in 2013, department of justice then director-general, Nonkululeko Sindane, had agreed to Hlophe’s request for “unconditional legal funding”. This on the basis “of the public’s interest given the complex legal issues involved”.

So in a nutshell, we are paying for our own legal education in the Hlophe/Zuma matter.

Hlophe had initially refused to sign an undertaking that he would reimburse the state should he be found guilty, delaying his impeachment investigation by two years. This due to a “disagreement” between the state attorney’s office and Hlophe’s attorney, Barnabas Xulu, over the rate of legal fees charged in the matter.

A 2019 memorandum revealed that the state attorney had found “a history of inflation of costs when it comes to legal costs claimed by Mr Xulu” and proposed R20,000 a day (capped). 

Xulu, in the meantime, has been reported to the Legal Practice Council for misconduct and had his Porsche and luxury house seized by the sheriff of the court. This in a matter involving R20-million in legal fees he has been ordered to repay the state.

A phalanx of heavyweight SCs was present at Hlophe’s virtual hearing this week. Steven Budlender for the Speaker of Parliament, Vincent Maleka, also on behalf of the JSC, Gilbert Marcus on behalf of the constitutional court judges (excluding Jafta and Nkabinde).

Budlender argued that Parliament’s only job, legally, is to vote on the Judicial Conduct Tribunal’s recommendation and to see whether it passed with a two-thirds majority.

All the rest of us can do now is wait, along with Hlophe.

The lasting legacy of both former president Jacob Zuma and Judge President John Hlophe is that both, in their long walk to accountability, have pushed South African law to the extreme but, in so doing, have helped to set a string of precedents in the process.

The cost, unfortunately, both in monetary terms and a loss of faith in institutions, has been high. DM

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  • … Hlophe “now sits with the feeling that his right to be assumed to be a judge of integrity and wisdom is under threat”. This is totally impossible, as jh has never had any inclination of what integrity is in the real world.

  • The ANC caucus will do the same that they did with Zuma they will probably vote to not impeach they have not learned their lesson with Zuma, or they possibly think this is a different situation. Both Zuma with all the votes of no-confidence (or in the case of the ANC confidence) and Hlope have support from factions that are inept, and immoral. The architecture of our social contract or constitution needs to allow these people to exist but to only affect those that support them and leave the rest of us to get on with being productive. These problems cannot be solved with the implementation of a law or two it can only be fixed with a rehashing of the architecture of the social contract. One based on maxims that are logical, absolute and fair. Our current constitution is based on maxims that are not ends in themselves except the right to life. The right to education, a house, medical aid etc are subjective, all human constructs, who decides? it’s a grey area. The architecture needs to be based on maxims that are natural constructs that are ends in themselves. That architecture leaves no room for subjectivity it must be a absolute binary logic. That will result in a justice system that is reduced to a almost mathematical process. No grey areas in the core maxims, those grey, subjective maxims, are where the genesis of the problem lies. If you remove the problem you don’t need a solution for it.

    • Ion: I feel for you!

      One of our difficulties is what rules do we make for which ruler?

      As I get this, Hlope is in a lifetime appointment barring recall. That is terrible.

      Now imagine a good judge and a bad legislature hell-bent on removing the good judge.

      Imagine for a moment that Dlamini-Zuma was Madame President and she was deciding next Chief Justice. Can legally ignore what JSC recommends.

      Laws are as effective as the surrounding systems and legislature allows.

      Personally I’d see renewable terms for judges. The concept of lifetime appointments is insane.

      I could find 50 people that will double Hlope’s pension if he’d just disappear. Thing is, he has 5 mates that make it worth his while not to retire.

      • Hi Johan,
        I have never formally studied philosophy but have found quite a interest in it lately. Many scholars have tried to develop theories of justice, from the Ancient Greek philosophers with Aristotle and his concept of the good life, through the medieval philosophers, Thomas Aquinas who strangely for a religious scholar was very into natural justice, through the enlightenment philosophers, Hobbs, Locke, Kant, Rossouw to the more contemporary philosophers mills and one of the latest John Rawls with his book a theory of justice. If you look at the logic of their concepts or theories it’s very interesting and good food for thought. For instance Rawls in his book a theory of justice develops a concept called a veil of ignorance, the logic behind this concept is sound, it states that any concept of justice or a social contract should be developed from behind a veil of ignorance, in other words you must not know what your position in that society is going to be that way you design it for the most just outcome for the worst off just in case it’s you. A interesting sound principal. Kant had his concept of a categorical imperative that basically states that if a action or law is moral it must be universalizable (applicable and acceptable to all) and not result in a contradiction, and be a end in itself, at its highest level it will be a law that you automatically follow no matter what( a bit abstract), similar or equivalent to a law of nature. Wish there was more space here…

        • …Then you have Hobbs who has a very low level approach to justice in that there must be a strong individual sovereign or “king” no matter what who dictates laws, just or unjust. Locke and Rossouw were more into social contracts that promoted concepts that were either utilitarian (utility or what’s best for the majority) or libertarian (liberty or justices for all) both concepts that are embraced in democracy, more so utilitarianism it appears. Mills who was around the time of the American constitution had his harm theory of justice. These are all interesting concepts but when they are incorporated into social contracts or constitutions just about all the maxims that result (in our case bill of rights) are human constructs that by definition will have biases. Just about all.. the only one that is not is the right to life that’s a natural construct and is a end in itself. So the other maxims are all subjective , what is a education, house, health care, even electricity.. is it a traditional koi San house or a Xhosa education or Zulu health care or a AA battery, who decides and who decides who pays, it’s very subjective, surely that should be up to the individual. The right to life doesn’t have these issues. It’s the only one that come close to satisfying the concepts of Kant’s categorical imperative and Rawls veil of ignorance, but it even satisfies in some abstract way mills harm theory and Aristotle’s good life. So one needs to try understand the theory behind the theory….

          • …As rights are not ends in themselves, except the right to life, what defines a right? A right today is the same as a right yesterday is the same as a right tomorrow. Extrapolate that by a million years, a right a million years ago, and in a million years time, and see the problem the only constant is a right to life, a natural construct. Due to the plurality of society all other “rights” are biased and subjective and not ends in themselves (they require some other intervention or input from another party) that is fine as long as all involved consent to their involvement of their own volition or free will. When it come to people like Julius malema, or Zuma or Uys they must be allowed to exist but why must that affect me. It’s not what I want in my life. They must only affect those that they want to follow them, he is their leader not mine. So if one develops a social contract that has as its maxim a concept that for ages has also flummoxed scholars and philosophers and that is the definition of time. We all value time in fact it transcends the human experience every conscious mind values time. It’s the universal currency of value. In fact our current socio economic models and the way we interact with each other all revolve around this without us consciously realizing it. It the right to life or your time. What do you pay someone for when they work for you, what does a artist use to create art, it’s in fact the common denominator in everything you do even when you do nothing..

  • Look at the team assembled around Hlope in Western cape,once in power here he assembled a grouping,then we will understand better how he operates,not withstanding his links to RET and Zuma and ilk.Once you lay a charge of domestic violence or abuse or plan to and you renege on that plan it is quite obvious what has taken place behind closed doors,but we can only surmise?

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