Parallels were drawn between the cases involving ruling-party president Jacob Zuma and Cape Judge President John Hlophe in the Johannesburg High Court on Wednesday.
Advocate Gilbert Marcus, SC, representing the judges of the Constitutional Court, quoted extensively from court papers in the corruption case against Zuma.
Marcus argued that, as in the Zuma case, ”the right to dignity does not necessarily extend to the right not to be named as a suspect once there is a reasonable suspicion that a crime has been committed”.
Hlophe wants actions by the Constitutional Court against him to be declared unlawful. He is arguing that the court infringed on his right to human dignity by distributing a media statement on alleged misconduct by him before offering him an opportunity to respond.
The Constitutional Court judges released a statement on June 30, charging that Hlophe allegedly tried to influence improperly Judge Bess Nkabinde and acting Judge Chris Jafta in a case related to corruption charges against Zuma.
”That Mr Zuma is suspected of alleged corruption is the truth; it does not signify his guilt. His right to be presumed innocent remains untrammelled,” said Marcus. ”[But] there is no right not to be named as a suspect,” he added.
‘Gross misconduct’
Marcus contended that Hlophe, in papers before the court, practically admitted to gross misconduct.
”The applicant has admitted that he had conversations with two judges of the Constitutional Court about the Zuma/Thint cases. His attempt to portray these discussions as a collegial interchange is unsustainable,” said Marcus in his heads of argument.
”Elementary principles of judicial ethics preclude a judge of one division to discuss the merits of a matter with judges of the highest court in circumstances where judgement is still pending.
”On his own version, this is precisely what the applicant did. That, with respect, amounts to gross misconduct,” said Marcus.
The Constitutional Court judges explained in their court papers why they decided to issue the media release without offering Hlophe an opportunity to respond.
”With a view to the constitutional values of openness and accountability, it was considered that the independence of the Constitutional Court and its deliberative processes would be best protected by a public disclosure of what occurred.
”It was felt it was particularly important to reassure the public that the public judges of the court are committed to protecting the integrity of the judicial process and will not, even when circumstances may be difficult or hostile, shrink from that commitment.”
Marcus argued that the judges of the Constitutional Court did not need to give Hlophe a chance to react to the allegations against him. He said the complaint was laid by the judges in their individual capacities and not as a court of law.
That meant there was ”no obligation” to offer Hlophe a chance to respond. If the complaint had been laid by the court as an institution, Hlophe would have been able to demand a hearing but that was not the case here, said Marcus.
Friend of the court
The hearing was briefly delayed on Wednesday morning when Hlophe’s lawyer, Dumisa Ntsebeza, objected to the court’s invitation to advocate Wim Trengove, SC, to act as a friend of the court in the case.
Trengove represented the state in the Constitutional Court case dealing with search-and-seizure raids related to Zuma’s corruption charges. Ntsebeza raised questions over his independence.
The full Bench of five judges heard arguments on the matter before withdrawing the invitation.
”Given the sensitivities that have developed around this matter, a court would not like any party to be uncomfortable,” said Judge Phineas Mojapelo.
But when Vincent Maleka, SC, started his arguments on behalf of the Judicial Service Commission (JSC), which is investigating the complaint against Hlophe, Ntsebeza complained that Maleka was using arguments from Trengove’s court papers.
”Let me make it quite clear that I do not crib or plagiarise from Mr Trengove,” Maleka replied.
He asked the high court to use its discretion not to make any order of declaration.
”You would be tying the hands of the JSC if your lordships grant it [the declaration],” said Maleka, who added that the JSC will conduct its own, independent investigations into the matter.
But Ntsebeza, in his reply, argued that the court did not have the discretion to decide that it must not make an order.
”There is nothing that can ever justify the conduct [of the Constitutional Court judges]. He [Hlophe] had a right to be heard,” said Ntsebeza.
The five judges presiding over the case are Mojapelo, Antonie Gildenhuys, Dirk Marais, Seun Moshidi and Rami Mathopo.
The court reserved judgement in the matter.
No judgment date was given. — Sapa