The Judicial Service Commission (JSC) did not conclude its deliberations on the misconduct finding against Western Cape Judge President John Hlophe on Friday and will continue these on July 30, spokesperson advocate Dali Mpofu said.
Western Cape high court Judge President John Hlophe's long and winding road either to clear his name or face possible impeachment is set for further twists and turns when his disciplinary hearing begins on Monday September 30 in Johannesburg.
In 2008, Hlophe was accused of judicial misconduct by the full Bench of the Constitutional Court. The judges alleged that he had sought inappropriately to influence judges Bess Nkabinde and Chris Jafta in a decision pending in the Zuma/Thint matter, which related to fraud and corruption charges against President Jacob Zuma, then ANC president and an ordinary citizen.
In a blistering counter complaint, Hlophe argued that the manner in which the Constitutional Court had done this – including releasing a media statement – had impinged on his right to dignity and cast a public cloud over his judicial integrity.
At a pre-trial hearing on September 21, Nkabinde and Jafta questioned whether the judicial conduct tribunal set up to hear the matter had the legal jurisdiction to do so in terms of section 14 of the Judicial Service Commission Act, which was amended in 2008.
The judges noted that, in terms of the Act, a complaint against a judge "must be … lodged by means of an affidavit or an affirmed statement". Their counsel submitted to the tribunal president, retired high court judge Joop Labuschagne, that, "according to the record furnished to the two justices, no such complaint on oath or affirmation has been availed". According to the judges, this means "they will contend that they are under no obligation" to attend the hearing, raising questions about whether the process will go on or be jettisoned.
Sello Chiloane of the JSE secretariat said the issue raised by Nkabinde and Jafta would be aired during oral arguments at the tribunal's opening and that a decision by Labuschagne would "shape the tribunal".
According to members of the legal fraternity, this could turn out in several ways, including having the matter sent back to the commission to decide on a way forward.
There is also the possibility that the five-year-long saga may come to an end without Hlophe having to face charges if Nkabinde and Jafta do not file an affidavit or complaint under oath if it is decided that this is legally necessary.
It was recorded in the initial complaint filed by the former, now late, chief justice Pius Langa, that neither felt a complaint against Hlophe was justified as both had apparently rejected Hlophe's approach and considered it the end of the matter.
Hlophe's attorney, Barnabas Xulu, is of the opinion that only Nkabinde and Jafta can file an official complaint. One filed by the other Constitutional Court judges would amount to "hearsay" as none had been present at the meetings.
The initial complaint, which details the interactions between Hlophe and the two judges in their respective chambers, makes for compelling reading.
According to the complaint, Hlophe allegedly told Nkabinde that "he had a mandate" to approach her, adding that the privilege issue (which allows someone legal prerogative to withhold information) in the Zuma/Thint matter had to be decided "properly". The issue of privilege related to two sealed boxes of Zuma's financial records that the Scorpions had seized from the offices of his lawyer, Michael Hulley.
Nkabinde, who was writing post-hearing notes on privilege for the Constitutional Court, told Langa and deputy chief justice Dikgang Moseneke at a May 28 2008 meeting, at which Jafta was also present, that she was puzzled and concerned about why Hlophe would raise the issue of privilege. She said Hlophe had allegedly stated he was politically well connected and connected to members of national intelligence, implying that he was well informed about what was happening at the court.
According to the complaint, Jafta was willing to relate the first part of his March 2008 conversation with Hlophe, but not the second, which he said had been told in confidence. Jafta said that, during his meeting with Hlophe, the judge president had allegedly told him that Zuma, like Hlophe, had been "persecuted" and that the case should be looked at properly, or words to the effect that Jafta was the last hope.
Both Jafta and Nkabinde had apparently told to their seniors that they felt they had dealt with the matter decisively and that no complaint or statement was necessary.
The next step on Hlophe's long and winding road is likely to be determined on September 30. What is clear is that, much like The Beatles' song penned by Paul McCartney about the increasing divisions within the band, the Hlophe saga has clearly polarised the judiciary and the broader legal community.