/ 6 June 2008

High noon for Judge Hlophe

Cape Judge President John Hlophe will face a tough, courtroom-style interrogation by the disciplinary committee of the Judical Service Commission.

Cape Judge President John Hlophe will face a tough, courtroom-style interrogation by the disciplinary committee of the Judical Service Commission (JSC) — and possibly some of the country’s top advocates — over allegations that he tried to influence Constitutional Court judges in favour of ANC president and corruption-accused Jacob Zuma.

Supreme Court of Appeal president Craig Howie, one of Hlophe’s most persistent questioners in previous JSC hearings, will chair the meeting and has already approached senior counsel to suggest that they cross-examine Hlophe on the commission’s behalf.

A highly regarded silk in the Johannesburg Bar will represent the Constitutional Court judges. There is speculation that Dumisa Ntsebeza, Hlophe’s most outspoken supporter since 2004, will represent the judge.

Neither Hlophe nor any Constitutional Court judges were expected to attend a Friday meeting to discuss the complaint, but they will hand in written statements or affidavits. All the commission’s members will be present apart from the political representatives, MPs and the minister of justice.

‘The proceedings in the follow-up meetings will mirror those of a court with the committee members serving as a jury,” said a JSC member. ‘There will be an evidence leader and cross-examination.” The case is so sensitive that no one on the commission has yet been given details of the allegations.

But it seems clear that Hlophe now faces a more determined commission than the one which previously stopped at mild disapproval of his conduct.

A third member of the commission was anxious to stress that race would not be a factor, saying Hlophe could expect a ‘dispassionate trial”.

Howie formally retires in August and has returned from leave to head the process. Chief Justice Pius Langa, who normally chairs the JSC, is away for a fortnight, but it is widely felt that he should not chair the proceeding because as a Constitutional Court judge he will be seen as party to the complaint.

‘It is of immense significance that Howie will be leading this,” said a senior legal scholar. Two senior advocates agreed, citing Howie’s imminent retirement and independence.

At last year’s JSC inquiry into the propriety of Hlophe moonlighting for the financial services firm Oasis, Howie questioned Hlophe sharply about the money he received and his tax affairs, while Transvaal Judge President Bernard Ngoepe attempted to back away from awkward avenues of inquiry.

Transcripts of the hearings show that Howie asked whether Hlophe had declared his income from Oasis for tax purposes.

When Hlophe sought to evade the question, saying ‘I have not had any queries raised from the tax authorities”, Howie refused to let him off the hook, demanding that he provide the relevant information to the commission.

Ngoepe later tried to get Howie to back away from this line of questioning, saying he was ‘quite uncomfortable about such direction because what if someone hears that he has not disclosed that in his tax returns, which means a criminal offence …”

‘That is not a complaint,” was Howie’s curt response.

The exchange, which came into the public domain when the Cape Times published excerpts from the transcripts, was a dramatic illustration of the divide — largely along racial lines — that split the JSC over Hlophe.

It is not clear how the commission will respond to demands for more transparency but it has traditionally guarded its confidentiality closely, leaving it vulnerable to charges that judges cover up for one another.

‘There will be a significant lobby calling for the hearing to be held in public,” said a JSC member. ‘The commission’s credibility took a knock after the last hearings.”

Meanwhile, there is intense speculation about Hlophe’s motives. Sources at the Constitutional Court and other senior legal figures told the Mail & Guardian that Hlophe has been a regular visitor to Constitution Hill in recent months, on the pretext of using its library.

‘He has actively been going around to judges trying to lobby people to support him for the position of chief justice,” said one person who witnessed these efforts.

Some judges have told friends that Hlophe’s approaches made them uncomfortable because they showed such shameless ambition. But it is his perceived lobbying for Zuma that has really angered the judges.

All of them this week clammed up about the details, with acting Chief Justice Kate O’Regan declining to comment on even procedural questions.

All anyone familiar with the process would say is that Hlophe was very actively arguing Zuma’s line in the cases that are before the Constitutional Court.

A close friend and associate of Hlophe suggested that the complaint against him arose from the misinterpretation of a lunch he had had with judges Bess Nkabinde and Chris Jafta, at which the Zuma case was discussed informally.

‘He has no links with any political party and will not promote anyone,” this person said, going on to claim that the complaint was a further manifestation of tension at the Cape Bar: ‘I was not surprised when the Cape Bar Council and people such as Jeremy Gauntlett immediately spoke out against him.”

But advocates and judges were adamant that the Constitutional Court would not lay a complaint unless judges believed Hlophe’s conduct had been grossly inappropriate.

‘This is not just casual conversation or chitchat,” said one person close to the process. ‘There must be very serious reasons for the court to go this route.”

Speculating on the ways in which improper influence could have been exerted, advocates said it could range from bribing a judge to persuading him or her that a certain decision would be good or bad for the country, or making promises of some kind.

‘Improper influence means that even if you just spoke to two judges, you are trying to influence the whole court,” said one.

The two different strands of lobbying — for his own advancement and for Zuma — are both crucial to the reaction of the legal community in the latest row.

Deputy Judge President Dikgang Moseneke was seen as the most likely inheritor of Pius Langa’s robes when the latter retires next year — until Zuma’s supporters rounded on him over remarks at his birthday party, which they saw as critical of the ANC president.

Moseneke was also a key figure in the successful campaign to get President Thabo Mbeki to drop controversial legislation that judges felt would dilute their independence, and earned considerable enmity from within the ruling party as a result.

Some observers believe Hlophe may have been advocating for Zuma in a bid to ingratiate himself with the man most likely to take over from Mbeki next year and who would then appoint the next chief justice.

Others dismiss such claims as ridiculous. ‘Zuma is not going to put someone so tainted in that job. If nothing else, the ANC leadership will stop him,” said one ruling party figure. Two judges agreed, but said Hlophe might not see it that way.

In the background to this debate is the ongoing tussle over the transformation of the judiciary, which was once again emphasised in the ANC’s Polokwane resolutions.

Hlophe is seen by some of his supporters — and all of his critics — as much more accommodating of the ANC’s wishes and as a potential judicial champion of the party under a Zuma presidency.

But not all in the Zuma camp welcome his support. ‘He has to go,” said one senior figure. ‘It is a total embarrassment.”