Cape Judge President John Hlophe admitted to gross misconduct in an affidavit before the Johannesburg High Court, a lawyer said on Wednesday.
”We say the applicant’s [behaviour] violates the elementary principle of judicial ethics,” said advocate Gilbert Marcus SC.
Marcus was addressing the court in an unprecedented case where Hlophe is seeking a declaration that actions by the Constitutional Court against him be declared unlawful.
Marcus is representing the judges of the Constitutional Court, who stand accused of infringing Hlophe’s 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 improperly influence Judge Bess Nkabinde and Acting Judge Chris Jafta in a case related to corruption charges against ruling party president Jacob Zuma.
Marcus said that Hlophe, in his papers before the court, gave details of the conversations he had with the two judges in an attempt to defend himself against the charges that he tried to influence their decisions in the Zuma case.
Marcus quoted Hlophe as saying to the judges, ”I felt strongly about privilege and fair rights” and ”the Zuma matter had to be correctly decided on”.
Marcus said these statements — made by Hlophe’s own admission — already amounted to misconduct.
”That, with respect, amounts to gross misconduct,” Marcus told the court. ”On his own version, that is what occurred.”
He further argued that the judges of the Constitutional Court did not need to offer Hlophe an opportunity to respond to the charges before making them public.
Marcus 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 him 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.
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 Trengove’s independence.
A 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.
The five judges are Mojapelo, Antonie Gildenhuys, Dirk Marais, Seun Moshidi and Rami Mathopo.
The case continues. — Sapa