Eight years on and the Hlophe case takes another turn

Appeal unappealing: Two judges won’t give up on their issue with the Western Cape judge president, John Hlophe. (David Harrison)

Appeal unappealing: Two judges won’t give up on their issue with the Western Cape judge president, John Hlophe. (David Harrison)

This week, this column could be retitled “Only in South Africa”. A few weeks ago a unanimous Bench of the Supreme Court of Appeal dismissed an appeal by Constitutional Court justices Bess Nkabinde and Chris Jafta against a finding of a full Bench of the high court in Pretoria.

The high court had found that the procedures adopted by the Judicial Services Commission (JSC) in constituting and conducting a disciplinary process concerning the judges and Western Cape High Court Judge President John Hlophe were legal.

The original complaint was lodged by all 11 Constitutional Court judges in 2008 when they complained that Hlophe had tried to improperly influence the judgments of Nkabinde and Jafta in a matter involving Thint – the local subsidiary of French arms manufacturer Thales, one of the bidders in the arms deal – and Jacob Zuma, a year before he became president of the republic.

Despite the decisions of two courts and eight judges (“Hlophe matter must finally be laid to rest”, March??18), Nkabinde and Jafta now want to appeal to their own court. From reports reproducing segments of their affidavit, it seems their appeal will argue that the appeal court decision was influenced by the fact that the appellants were Constitutional Court judges, so their reputations have been drawn into the dispute because of that judgment.

Recall what appeal court Judge Mahomed Navsa said in his judgment on the high court’s findings. First he quotes Hlophe: “My conscience is clear about these allegations, and I will appear before a properly constituted Judicial Service Commission ... when I am called to do so ...”

Then Navsa says: “The appellants also assert that they are willing to testify and be cross-examined. Against all of these assertions it was unsettling when counsel on behalf of the appellants, with emphatic certainty, stated during submissions before us that this matter would never end, speculating without specificity that there would be ongoing challenges to proceedings related to the complaint. The judicial image in South Africa cannot afford to be further tarnished in this manner.

“As can be seen from the extensive litigation referred to above, each of the protagonists, including the JSC, has contributed to the delay. There should be a concerted effort and determination on the part of everyone concerned for the matter finally to be put to rest.”

Nkabinde also complains about the treatment her and Jafta’s counsel received at the appeal court hearing. As with reputations, this is hardly the stuff to justify an appeal to the Constitutional Court.

But let us leave aside the merits of the appeal or the language employed to criticise the appeal court judgment. There is clear precedent from the Constitutional Court, in an earlier case involving the Hlophe complaint, to the effect that the apex court cannot hear such an appeal.

The appeal court is the end of the legal line in the matter. Surely the two judges cannot expect their very own judicial colleagues at the Constitutional Court to change such an obviously correct precedent?

Navsa’s warning that the judicial system is tarnished by a delay in the disciplinary proceedings resounds more loudly after this appeal. The complaint against Hlophe was made in 2008 and for eight years this issue has been unresolved.

It was the very evidence given by Nkabinde and Jafta that was the reason a JSC tribunal headed by a senior judge found that, if proved, the allegations against Hlophe could give rise to a case of impeachment.

Nkabinde and Jafta have stated on affidavit, as noted by Navsa, that they are willing to testify – but in accordance with correct procedure.

Eight judges have given short shrift to their arguments about illegal procedures. Hlophe has been waiting for years to clear his name, and recently the rights organisation Freedom under Law complained about him taking his place at the JSC.

He will continue to face such attacks while the allegations remain in the air. This constitutes major prejudice.

This latest turn in this case is most unfortunate. Coming on the heels of the majestic assertion of the rule of law by the Constitutional Court in the Nkandla case, the two judges’ appeal takes away some of the glow.

Only in South Africa could a complaint by the then chief justice and members of the highest court in the land, against a sitting judge, made eight years ago, remain unresolved – and with no end in sight.

 
Serjeant at the Bar

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