It is astounding to think that it was some 12 years ago that the Constitutional Court heard a case dealing with Thint and Jacob Zuma. Before judgment in those matters was handed down, Judge President John Hlophe visited Justice Bess Nkabinde and Justice Chris Jafta separately in their chambers at the Constitutional Court and had relevant discussions with them. The first visit was to Justice Jafta towards the end of March 2008; Justice Nkabinde was visited on 25 April 2008. During these respective visits, Judge Hlophe discussed, among other things, the issues which were the subject of the pending judgments in Zuma-Thint matters.
On 30 May 2008, the 11 Justices of the Constitutional Court lodged a complaint with the Judicial Services Commission (the JSC). In terms of the Judicial Services Commission Act 9 of 1994 (the Act), the JSC is the only body empowered to receive and deal with complaints concerning the conduct of judges. The complaint was that Judge Hlophe had, during the discussions with Justice Nkabinde and Justice Jafta, improperly attempted to influence the Constitutional Court’s pending judgment in the Zuma-Thint case.
In the style of those caught legally offside, Judge Hlophe promptly lodged a counter-complaint against the Justices of the Constitutional Court. He accused them of having undermined the Constitution by making a public statement alleging improper conduct on his part before properly filing a complaint with the JSC. He further complained that, by filing the complaint even before they had heard his version of the events, they had violated his rights to dignity, privacy, equality, procedural fairness and access to courts.
More than 12 years later, in December 2020, a judicial Tribunal constituted by the JSC finally heard evidence and argument on the complaint against the judge president. The findings are devastating to the continued presence of John Hlophe as a member of the judiciary, let alone a judge president. In his counter attack, Judge Hlophe had impugned the motives of Constitutional Court justices for lodging a complaint against him as well as the testimony that they would offer. Chief Justice Langa and Deputy Chief Justice Moseneke, together with Justices Nkabinde and Jafta received the full ire of the judge president.
The Tribunal had this to say about the conduct of the judge president:
“We consider it our duty to vindicate the integrity of the Justices of the Constitutional Court, in particular Chief Justice Langa, Deputy Chief Justice Moseneke, Justice Nkabinde and Justice 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 of our Republic.”
This is an important passage in that it brings into sharp critical relief the calumny of Judge Hlophe’s conduct, particularly against two revered leaders of the judiciary, Pius Langa and Dikgang Moseneke.
Then the Tribunal turned to Judge Hlophe’s attempt to argue that the 12-year delay justified the dismissal of the complaint against him. To this the Tribunal said:
“We have set out in some detail the reason for the delay, some of it in no small measure, attributable to Judge President Hlophe himself… we have chronicled his own litigation and occasions on which he sought postponement of the proceedings of this Tribunal. All these contributed to the delay. It is opportunistic and untenable for Judge President Hlophe, under the circumstances, to advance the delay as the basis of some prejudice.”
On the key issue of seeking to influence the outcome of a judgment that held clear danger for then-president Zuma, Judge Hlophe’s counsel had argued that there was nothing untoward about a judge discussing a case with judicial colleagues, notwithstanding that he was not a member of that court. This argument was foreshadowed in the cross-examination of Justice Jafta by Judge Hlophe’s lead counsel, Courtney Griffiths QC, and pressed in argument. But it was given short shrift by the Tribunal, by stressing the care that should be exercised in non-engagement in cases that did not involve the particular judge and where a judge hearing the case had not sought advice:
“It is also the lived experience of members of the Tribunal, who are members of the legal profession, as judges and a practising attorney. That principle is deeply rooted in the legal profession. It is instilled through years of practice, either as an advocate or an attorney, from whose ranks most judges are drawn. With elevation to the judiciary, one carries it along. 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 when the impugned conduct occurred, he had been a judge of the high court for over 13 years, five of those as a judge president. He is expected to have been aware of it, and on balance, he was.”
There was something desperate about this defence. The claim was that Judge Hlophe had a keen interest in canvassing the legal question of privilege. Now, Judge Hlophe can lay a clear claim to administrative law expertise, having obtained a PHD from Cambridge in this area. However, he has written nothing of academic significance about privilege and a search through his surprisingly small list of reported judgments, for one who has been on the Bench for some 25 years, reveals none on this specific topic.
In the evaluation of the merits of the charges, the Tribunal placed particular emphasis on the evidence of Justice Nkabinde, whom it stressed was not a friend of Judge Hlophe. Yet he visited her chambers, sought to engage with her about the case and to impress her with his contacts in important political places. The Tribunal said of this:
“It seems to us the reason he told Justice Nkabinde all these, 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 with her. This inference is irresistible, and points to an attempt to influence.”
In the result, the Tribunal found that Judge Hlophe’s conduct breached the provision of Section 165 of the Constitution in that he improperly attempted to influence the two Justices of the Constitutional Court to violate their oaths of office; his conduct seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court; and further his conduct threatened public confidence in the judicial system.
This long-running saga now must be considered by the full JSC. If, as surely in law it must, the JSC is to comport itself in a legally rational way, and confirms the finding, it will be for the National Assembly to decide on impeachment. A resolution must be passed by at least two-thirds of the House.
Doubtless the usual suspects will defend Judge Hlophe even as the logic of the finding makes such a defence totally impossible to mount on any plausible basis. In the meantime, the JSC must surely recommend to the president immediate suspension of Judge Hlophe from judicial office. The process of repairing the damage to the judicial institution caused by this unfortunate saga must now commence. And in case you forgot, Judge Hlophe must return to another Tribunal in a second case that may lead to another process of impeachment. DM