Hlophe's conduct not in line with standards expected of judges, JSC says

26 August 2021 - 18:48 By Franny Rabkin
The Judicial Service Commission said judges are pillars of the entire judicial system and their role is a fundamental one.
The Judicial Service Commission said judges are pillars of the entire judicial system and their role is a fundamental one.
Image: Supplied

Western Cape judge president John Hlophe’s conduct was not in line with the high standards the public could expect of SA’s judges, the majority view of the Judicial Service Commission said.

“Judges are pillars of the entire judicial system and their role is a fundamental one,” said the written majority decision.

It was this view that persuaded a majority of eight commissioners to vote in favour of finding Hlophe guilty of gross misconduct, clearing the way for an impeachment inquiry by parliament. The written decision will, along with a minority written decision, be sent to parliament.

The JSC decision — the first of its kind in post-1994 SA — is related to a 2008 complaint by all the then justices of the Constitutional Court that Hlophe had sought to influence the outcome of cases, then pending before their court, related to corruption charges against former president Jacob Zuma.

At the time, Zuma was president of the ANC and the judgment in the Zuma cases was widely believed to be crucial to his prospects of becoming president of the republic.

After years of litigation, a Judicial Conduct Tribunal earlier this year found that Hlophe had committed gross misconduct, impeachable under the constitution. The tribunal decided that Hlophe improperly sought to influence two of the highest court’s justices — Bess Nkabinde and Chris Jafta — to violate their oaths of office. On Wednesday, a majority of the JSC voted to uphold the tribunal’s finding of gross misconduct.

Earlier, in June, the JSC decided that some of its members would write an opinion in favour of impeachment and others would write against — to assist them in deciding how to vote.

On Wednesday, eight voted for the majority view and four commissioners voted against a gross misconduct finding — in line with the minority view.

The majority view agreed with the findings of the Judicial Conduct Tribunal, including its view that Jafta and Nkabinde had not been coerced or manipulated to be part of a complaint against Hlophe. This is one of the points on which the minority and majority views differ strongly.

Hlophe had, since the beginning of the complaint, always taken the position that Nkabinde and Jafta were unwilling complainants and that they were pressured into complaining by former chief justice the late Pius Langa and former deputy chief justice Dikgang Moseneke.

Hlophe had referred to a letter from the two to the JSC in the early days of the complaint in 2008 where, in response to a request from the JSC for statements from the complainant judges, the two said they were not complainant judges and would be making no statements. They later clarified that they did not wish to make individual statements, but were willing to be part of a collective complaint by all the ConCourt justices.

At the tribunal, they also amended their versions so that, instead of saying Hlophe JP sought improperly to influence them, the statements merely set out the facts of what he said and did.

The tribunal concluded that the effect of these amendments was only to leave it up to the tribunal to make a judgment, but it did not change the versions of the two or to state the facts, without seeking to draw conclusions”.

The tribunal rejected Hlophe’s argument that undue pressure had been brought to bear on them; as did the majority view of the JSC, which read: “During their evidence-in-chief, Justices Jafta and Nkabinde both refuted the accusations that they were coerced or manipulated in any way in the strongest terms, as absolutely incorrect, insulting and totally devoid of credence.”

The majority also pointed out that Hlophe’s lawyers had an opportunity to cross-examine them on this issue but chose not to.

“There was no cross-examination on these issues. Their evidence on the absence of coercion or manipulation thus stands uncontradicted,” said the majority.

The minority view was that, from the start, Jafta and Nkabinde had sought to distance themselves from the language of the ConCourt justices that there was an “improper attempt to influence”.

“They sought to remove the sting imputed to them in the statement ... Why then must the JSC read more into the discussions and ascribe to them a particular meaning which the two Justices expressly denounce?” said minority view.

The other point where the two opinions differ sharply is on whether Hlophe knew that judges should not approach other judges to talk about pending cases they were not involved in. The majority view agreed with the tribunal that Hlophe, on a balance of probabilities, knew this. The minority said this rule, if there ever was one, was at that stage “very much at conceptualisation stages; it had certainly not crystallised to a known and well established rule, the breach of which will result in a guilty finding”.

Under the constitution, parliament must now take up the reins of this issue. However, there may yet be a legal challenge by Hlophe to the JSC’s decision.

On Thursday, his attorney Barnabas Xulu said the judge president and his team would still have to study the reasons before deciding on a course.

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