ConCourt justices cross-examined in Hlophe misconduct tribunal

08 December 2020 - 18:14 By Franny Rabkin
Western Cape judge president John Hlophe.
Western Cape judge president John Hlophe.
Image: Gallo Images / Foto24 / Bongiwe Gumede

Constitutional Court justice Chris Jafta initially didn't think that a now-infamous visit by Western Cape judge president John Hlophe to him in chambers in 2008 was an attempt to influence the outcome of the pending Zuma/Thint cases.

It was only later, he said, after he had spoken to his colleague Bess Nkabinde that he drew some inferences.

Jafta was, for the first time in 12 years, being cross-examined on the complaint made in 2008 by all the then justices of the Constitutional Court. They complained that Hlophe had improperly sought to influence the outcome of cases then pending before their court connected to corruption charges against Jacob Zuma.

At the time, Zuma was president of the ANC and it was believed the judgment was critical to his prospects of becoming president of SA.

The complaint alleges that Jafta and Nkabinde were the two justices that Hlophe approached — in two separate meetings in March and April of 2008. In the meeting with Jafta, Hlophe had said that the Supreme Court of Appeal had gotten it wrong and that Zuma, like Hlophe, had been persecuted. He had said on the case that “sesithembele kinina”. 

Jafta said in his evidence in chief that because of these factors combined, his view was that Hlophe had been seeking an outcome that was favourable to Zuma.

“I thought that he was wishing for a decision which would favour Mr Zuma because the SCA had found against Mr Zuma,” Jafta told the JSC in 2008.

On Tuesday he made it clear that it was only later, and after he had talked to Nkabinde and his other colleagues, that he drew those inferences.

The clarity is relevant because it supports Hlophe’s argument all along — that the two justices whom Hlophe had approached were reluctant to make complaints. He also said in his original statements, 12 years back, that the two had been prevailed upon to complain by their colleagues at the highest court, though his counsel, Courtenay Griffiths QC, did not repeat these allegations on Tuesday.

Jafta said that, at the time, his understanding was in line with Hlophe’s version — that he was merely discussing an important legal principle on which he had strong views. At the time, he did not think there was anything improper about Hlophe’s conduct.

Since the complaint was first laid, there have been questions over the attitudes of the two to the complaint, especially after their shocking joint statement on June 12 2008 that they were not the “complainant judges” and had no intention to make a complaint, or make a statement on it.

On Tuesday they clarified their position on this score, with Jafta saying that, since he had not in fact been influenced, he did not feel that he needed to make a complaint as an individual. He said he understood the concern raised by his judicial leaders, chief justice Pius Langa and deputy chief justice Dikgang Moseneke, that what Hlophe had done had affected the integrity of the Constitutional Court as an institution and this was why they felt a collective complaint was appropriate.

However, he didn’t know if a complaint was the best way forward, he said. He was concerned about the effect on the judiciary.

“But that was not my call. It was their call,” he said.

In Nkabinde’s case, she said that she was indeed a complainant judge but the idea was that she be one of the collective of justices from the highest court to complain, though she knew she would have to give oral evidence.

Nkabinde also corrected a part of the original statement made by the justices collectively to support their complaint that Hlophe had “sought improperly to persuade Nkabinde J to decide the Zuma/Thint cases in a manner favourable to Mr J G Zuma”.

Nkabinde said: “That is incorrect. He did not seek to improperly persuade me. In my sense, he was attempting to influence me.”

However, Nkabinde stuck to her version — first given years ago — that Hlophe had in his phone conversation with her making an appointment to visit, mentioned that he had said in isiZulu something to the effect that he wanted to discuss the issue of privilege.

Legal professional privilege was a central issue in the Zuma/Thint cases and was the very issue on which Nkabinde had been assigned to be scribe of the court’s judgment.

She also confirmed her earlier evidence that Hlophe had told her that there was a list of people he had obtained “from intelligence” of people involved in the arms deal and that some people were going to lose their jobs after Zuma became president.

She confirmed that Hlophe had mentioned that there was a feeling that justices of the Constitutional Court should understand our history. And that when she asked who was raising these concerns Hlophe had said there were “certain ministers” whom he advised from time to time.

When asked by evidence leader Ivy Thenga about his statements that people would lose their jobs, Hlophe said  — “but not judges”.

He said he was a “political animal”, he talked politics and there was likely to be a cabinet reshuffle after Zuma became president. But he never said judges would lose their jobs. He was not cross-examined about the evidence by Nkabinde that he claimed to advise ministers from time to time.

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