/ 20 June 2008

Hlophe: The big questions

A united Constitutional Court has dealt Cape Judge President John Hlophe a devastating blow with a bombshell complaint to the Judicial Service Commission (JSC) about alleged interference in the Jacob Zuma case.

In a 21-page statement submitted to the JSC on Tuesday, Chief Justice Pius Langa on behalf of the entire Bench blows apart Hlophe’s bold insistence that it is ‘inconceivable that a single judge sitting in Cape Town can influence 11 judges in the highest court of the land,” as the Saturday Star quoted him as saying two weeks ago.

Hlophe now faces an uphill battle to save his career. The JSC has given him 10 days to answer the complaint, after which the court will have five days to comment afresh.

‘We are not going to be dealing with it in the media; we will deal with it in the appropriate forum,” Hlophe’s lawyer, Lister Nuku, said on Thursday.

The Mail & Guardian has identified the five big questions emanating from the court’s complaint.

Jafta’s role?
Looking for a door to the Constitutional Court, Hlophe turned to his old friend, Judge Chris Jafta, a judge of appeal acting at the Constitutional Court in the absence of Deputy Judge President Dikgang Moseneke and Judge Albie Sachs.

Jafta and Hlophe have been friends since they both lectured at the former University of Transkei.

When Hlophe received a ‘mandate”, as he allegedly told Judge Bess Nkabinde, he leant heavily on his former colleague to give him access.

He allegedly visited Jafta in his office unannounced at the end of March in a bid to influence him in Zuma’s favour in the Zuma/Thint matter. Two weeks earlier, Jafta sat on the Bench when the legal teams for Zuma and Thint presented their reasons for wanting the search and seizure warrants declared unlawful.

According to Jafta, Hlophe told him in Zulu that he was ‘our last hope” [‘Sesithembele kinina”] to rid Zuma of this legal obstacle. He appealed to Jafta for help, suggesting he and Zuma were both being persecuted.

Jafta told his seniors his impression was that Hlophe ‘wished for a particular result in this matter,” but did not specify it.

Jafta refused to reveal the other part of the exchange to his seniors, claiming it had ‘been told in confidence”.

Jafta believed he had dealt with the matter sufficiently by rejecting Hlophe’s approach, and saw no need to lay a complaint at the time. He did, however, feel compelled, when he heard Hlophe was due to visit Judge Bess Nkabinde, to warn her Hlophe was lobbying for Zuma.

A mole on the Bench?
Hlophe allegedly told Nkabinde that the privilege issues in the Zuma/Thint cases had to be decided ‘properly”.

In a subsequent conversation with another Constitutional Court Judge, Yvonne Mokgoro, Nkabinde expressed ‘concern” that Hlophe knew she was writing a post-hearing note for the court on privilege. The writing of these notes by assigned judges is standard practice in the Constitutional Court; they are then discussed by a full Bench.

Although Langa’s statement does not speculate on how Hlophe gained this insight, the chief justice suggests he was told by one of the 11 judges hearing the case.

‘Both Mokgoro and Nkabinde wondered how Hlophe had become aware of the fact that Nkabinde had been writing on that aspect,” Langa writes.

The privilege issue in the Zuma trial centres on two sealed boxes with Zuma’s financial records seized by the Scorpions from the offices of Zuma’s lawyer, Michael Hulley.

Hulley did not initially claim privilege, but later did, claiming that the search warrants were so wide they could have closed his practice.

Zuma also contends the raid hampered his trial preparation.

Hlophe’s ‘mandate’?
According to Nkabinde, Hlophe told her ‘he had a mandate” — apparently to sway Nkabinde and Jafta in Zuma’s favour.

This is borne out in what Hlophe allegedly told her: that she had to decide ‘properly” on the privilege issue; that if Zuma’s arguments were sustained there would be no case; and that Zuma, like him, was being ‘persecuted”.

The Constitutional Court stressed from the outset that there is no evidence Zuma or Thint knew of or prompted Hlophe to lobby for them.

Hlophe also allegedly told Nkabinde that some people would lose their positions after the election — presumably under a Zuma presidency. In this context, Hlophe told Nkabinde ‘he had outgrown the Cape High Court and that he was going to make himself available for appointment at the Constitutional Court and that Jafta should also make himself available for appointment”.

ANC secretary general Gwede Mantashe told the Cape Argus on Thursday: ‘Judge Hlophe is not a member of any structure of the ANC, so I don’t know what mandate he would be talking about.”

Asked whether Zuma or his legal team discussed the case with Hlophe, Hulley replied ‘absolutely not” and cautioned against ‘broad inferences”.

An intelligence role?
Nkabinde alleges Hlophe told her he had connections with the ‘national intelligence”. In his statement, Langa says the implication was that he was ‘well informed about what was happening at the court”.

His ‘intelligence” bothered Nkabinde — she was ‘puzzled” about how Hlophe knew she had written on privilege and ‘concerned” about how he obtained his information about the Zuma/Thint cases.
National Intelligence Agency spokesperson Lorna Daniels declined to comment on the court’s statement.

The tribal card?
On his visit to Constitution Hill ­Hlophe allegedly greeted Nkabinde by asking, ‘Which Nkabinde are you?” Was he asking whether she was Zulu, and seeking to exploit ethnic solidarity, or merely breaking the ice? He hails from Stanger in KwaZulu-Natal.

The Constitutional Court lays heavy emphasis on the question, which Nkabinde answered by saying she had acquired her surname by marriage.

She was born in the North West and went to school in the Free State.

Hlophe allegedly added that he had always thought she was from one of the Zulu-speaking Nkabinde families.

Court’s conduct not flawed, says Langa
Langa has defended the court’s handling of the complaint against Hlophe, reports Sello S Alcock.

Langa was responding to a formal complaint launched with the Judicial Service Commission by Hlophe’s counsel, which argued that by airing the complaint before the judge had an opportunity to respond to the charges, the court’s conduct was procedurally flawed.

Hlophe’s legal team also argued that the complaint should have been limited to the affected judges — Bess Nkabinde and Chris Jafta.

However, Langa hits back in the complaint itself, arguing: ”The integrity of the adjudication process and the very independence of the Constitutional Court had been threatened by Hlophe’s improper approach to Nkabinde and Jafta.”

He added that both judges had an obligation to report the matter and he cited case law to support this.

”The attempt to influence Nkabinde and Jafta — was calculated to have an impact not only on the individual decisions of the judges concerned but on the capacity of the Constitutional Court as a whole to adjudicate in a manner that ensures its independence, impartiality, dignity, accessibility and effectiveness as required by section 165(5) of the Constitution,” Langa said.

In defence of the court’s decision to publicise the complaint, Langa cited the constitutional values of ”openness and accountability”.

He said that it was felt that bringing such an unprecedented and grave matter into public discourse would best protect the court’s independence and deliberative processes.

”The purpose was not to fortify a complaint against Hlophe,” said Langa.

He also dismissed arguments by Hlophe’s legal team on the basis of ”established international jurisprudence”. ”The circumstances giving rise to the complaint against Hlophe were unprecedented and exceptional. There are no pre-ordained procedural requirements in such circumstances.”