Divide and rule, if possible, on racial lines. That is the strategy that clearly emerges from the response of Western Cape Judge President John Hlophe to the complaint laid against him by the assembled judges of the Constitutional Court.
In his answering affidavit to the Judicial Service Commission (JSC), leaked this week, the embattled Hlophe paints a picture of a court in disarray. According to him, Constitution Hill in Johannesburg is mired in plotting, bullying and racism.
A key theme of his 71-page submission is his attempt to isolate the court’s two most senior judges, Chief Justice Pius Langa and his deputy, Dikgang Moseneke, as the key plotters against him.
He argues that they strong-armed the two judges central to the complaint, Bess Nkabinde and Chris Jafta, into making statements against their will about their meetings with Hlophe, with ulterior motives.
”[Langa and Moseneke have] an inexplicable desire to get rid of me, to get me impeached and to suggest that I am not fit to be a judge any more. That kind of bandwagonism [sic] has been in vogue since I published my racism report a few years ago.”
Hlophe’s report about racism on the Cape Bench sparked a nationwide debate.
Hlophe offers no explanation why two senior black judges, Langa and Moseneke, should be conspiring against him. Indeed, during the row over Hlophe’s receipt of payments from Oasis Asset Management, it was Langa’s casting vote in the JSC that saved him from impeachment.
Despite his insistence that he has not tried to influence the two judges to rule in favour of Jacob Zuma, he admits to having told them there is no case against Zuma: ”I cannot betray the trust of our conversation that resulted in me remarking that there is no case against Mr Zuma.”
Hlophe goes further, accusing Langa and Moseneke of wanting to subvert the will of their colleagues and persuade them to join them in their campaign against him.
”Given the nature of the personalities involved in the cases which the Constitutional Court had to decide, it does appear that there may well have been a political move on the part of the chief justice and his deputy.”
He accuses them of lying by omission by not admitting that judges Nkabinde and Jafta had no initial desire to lay a complaint.
”The justices were either fibbing or did not level with the public when they implied that all their colleagues were united in solidarity against me.”
Although Hlophe says the conversation between himself and Nkabinde was between ”brother and sister”, he effectively accuses them of lying by telling the JSC that he (Hlophe) claimed to have had connections with ”national intelligence”.
According to Hlophe, Nkabinde told him she was writing a note on privilege in the case relating to the raids on Zuma’s lawyer. According to her, he admitted to having heard about this through intelligence sources.
The divide and rule tactic is obvious in an aside by Hlophe, irrelevant to his case, that Moseneke had admitted to him he was frustrated about ”what he perceived as the poor leadership of Chief Justice Langa”.
Another seemingly unrelated event he mentions in his response is his meeting with another Constitutional Court Judge, Sandile Ngcobo, immediately after the meeting with Nkabinde. He also admits to speaking telephonically to Ngcobo afterwards, but neglects to include details of any of these conversations.
The purpose is apparently to sow further division among the judges
Hlophe then attempts to alienate Jafta, who was only at the court for six months, from his Constitutional Court colleagues by pitting him against both Langa and Judge Kate O’Regan.
”[Jafta] made remarks about what he perceived as weak management of the court as a concern for him, in particular that it seemed that Justice O’Regan was running the Court and not necessarily Chief Justice Langa,” Hlophe said.
Race again rears its head in Hlophe’s submission in his account of a discussion with Jafta about the privilege issue. ”I expressed the view that I felt strongly, generally, about privilege and fair-trial rights. His response was that he felt the same about the issue of privilege and fair-trial rights but was not sure that everyone, particularly his white colleagues, shared the same thinking.”
Although Hlophe makes a point of hailing Jafta and Ngcobo as competent and independent, he makes no such concession to Langa and Moseneke.
Slyly, he also lines himself up with the new African National Congress leadership in his attack on Moseneke. He makes a gratuitous reference to the latter’s comment that his work ”was not what the ANC wants or what delegates [at the ANC’s Polokwane conference] want, it is about what is good for our people”. This prompted a virulent attack on Moseneke by the ANC.
”Why, given the remarks he is alleged to have made at his 60th birthday party post-Polokwane, is he so actively involved in trying to claim I was seeking to influence judges to find for Zuma, even going so far as to subvert the truth?” Hlophe asks in his submission.