Nothing disallows judges from discussing the law, Hlophe tells tribunal

Judges talk to each other about the law all the time and there is nothing wrong with it, said Western Cape judge president John Hlophe on Tuesday at an inquiry into gross misconduct against him.

Hlophe was being cross-examined, for the first time in 12 years, on a complaint laid in 2008 by all the then justices of the Constitutional Court. The judges complained that Hlophe had improperly sought to influence the outcome of cases then pending before their court and connected to corruption charges against former president 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 charge sheet, read out by evidence leader Ivy Thenga, set out briefly the facts upon which the tribunal was called on to decide whether Hlophe had “made himself guilty of gross misconduct”. The charges relate to meetings in March and April 2008 with two justices of the highest court, Chris Jafta and Bess Nkabinde.

In his meeting with Jafta, Hlophe was alleged in the charge sheet to have said the Zuma/Thint matters must be looked at properly because he believed Zuma was persecuted in the same way he had been, that the SCA got it wrong in its judgment and that Hlophe had said “sesithembele kinina”, which could be translated to “we pin our hopes on you”.

Upon cross-examination by Gilbert Marcus SC, counsel for all the ConCourt justices other than Jafta and Nkabinde, Hlophe agreed it would be a breach of judicial ethics if he had spoken to the ConCourt justices about a case he had presided over as a lower court judge. But he said there was nothing in the Code of Conduct for judges or any rule he knew of that disallowed judges from discussing the law with each other. Marcus read to Hlophe the ConCourt judgment of De Lange v Smuts, which quoted a Canadian case that said: “No outsider, be it government, pressure group, individual or even another judge, should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence.”

No outsider, be it government, pressure group, individual or even another judge should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. 

To this Hlophe responded: “But it doesn’t say you can’t talk about the law. It’s not interference to talk about jurisprudence,” he said. It would be different if there is a discussion related to the facts of a case. The Zuma/Thint cases raised important legal issues, relevant to every lawyer, he said. 

Hlophe said to Marcus and Thenga that Jafta had himself said, when he was being cross-examined by Courtenay Griffiths QC, that other lawyers had raised concerns about the Supreme Court of Appeal’s (SCA) judgment in the Zuma/Thint cases, and even other justices on the SCA bench. “Yet they are not being charged,” he said.  

Hlophe also said context was important as far as his comment on Zuma’s persecution went. He said Jafta had asked him whether his problems in the Western Cape were still continuing. He had responded that he was always going to have problems there and, as there were Zuma/Thint files piled around Jafta’s chambers, he said he was like Zuma in this way. 

In relation to his meeting with Nkabinde a few weeks later, Hlophe agreed he had talked politics with her. “I’m a political animal,” he said. 

In her cross-examination earlier, Nkabinde stuck to her version, first given years ago, that Hlophe had, in his phone conversation with her to make an appointment, mentioned 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 issue Nkabinde had been assigned to be scribe of the court’s judgment. 

She also confirmed her earlier evidence that Hlophe had told her there was a “list of people” he had obtained from intelligence of some of those involved in the arms deal and that some were going to lose their jobs after Zuma became president. She confirmed that Hlophe had said a concern had been raised that justices of the Constitutional Court “should understand our history”. Further, when she asked who was raising these concerns Hlophe had said there were “certain ministers” who he advised from time to time.

But while Hlophe admitted he had said people would lose their jobs, he had meant a cabinet reshuffle, he did not mean judges, who were permanently appointed. Can we just say he was not cross-examined by any of the counsel or evidence leader.

The tribunal will hear closing arguments on Friday.