A judicial tribunal heard claims of hacking, secret intelligence reports and alleged attempts by a senior judge to influence the country’s highest court in a case involving presidential frontrunner Jacob Zuma on Wednesday.
The Judicial Service Commission (JSC) is hearing a complaint against Cape Judge President John Hlophe, laid by the judges of the Constitutional Court, who say he allegedly tried to influence two of the judges to rule in favour of Zuma.
”Judge Hlophe crossed the line of legitimacy. He was not supposed to do what he was doing,” Constitutional Court Judge Bess Nkabinde told the JSC.
”John Hlophe is not my friend — he is not telling the truth,” she added.
Hlophe, in a statement before the commission, denied any wrongdoing, saying he merely had robust, academic conversations with Nkabinde and her colleague, acting Judge Chris Jafta.
Neither Hlophe nor his lawyers were present at the hearing because his legal team withdrew from the matter on Tuesday, arguing that Hlophe was ill and that his lawyers could not properly represent him in his absence.
JSC committee chair Judge Lex Mpati ruled that the hearing, which has been delayed several times in the past, would continue nevertheless.
The JSC heard how Hlophe allegedly first approached Jafta, an old friend, and raised the Zuma case, knowing very well that judgement by the Constitutional Court on the validity of search warrants in Zuma’s then fraud and corruption case was still pending.
Hlophe told Jafta: ”we pin our hopes on you”, in isiZulu.
”I am sure that he [Hlophe] said Mr Zuma was persecuted as he [Hlophe] had been and that the SCA [Supreme Court of Appeal] had got it wrong,” said Jafta, referring to an SCA ruling in the same matter which went against Zuma.
”I thought he [Hlophe] was wishing for a decision which would favour Mr Zuma because the SCA had found against Mr Zuma,” said Jafta.
Jafta testified that he felt uncomfortable entertaining the conversation with Hlophe but that he did not do anything immediately after the conversation as he was unsure how to handle the situation.
It was only after he heard that another judge of the Constitutional Court, Nkabinde, had also been approached by Hlophe that he realised that this could amount to an attempt at interfering in the judgement.
Nkabinde testified that Hlophe had contacted her telephonically and asked to see her to discuss the issue of privilege, a key matter under consideration in the Zuma judgement that the Constitutional Court was working on.
About three weeks before the meeting with Hlophe, Nkabinda had written a note on privilege to her colleagues.
She said she could not understand how Hlophe knew that she had researched the matter of privilege.
”I wondered whether, possibly our work was under surveillance, this crossed my mind,” said Nkabinde, adding that a colleague, Judge Yvonne Mokgoro, had around the same time lost confidential information on her computer.
Nkabinde, who at that time had been warned by Jafta that Hlophe might want to try to discuss the pending Zuma matter, said to the Judge President that she was not in a position to discuss the case with him.
Hlophe had also boasted to Nkabinde about obtaining a list of people implicated in the multibillion-dollar government arms deal from the National Intelligence Agency (NIA), she said. ”He [Hlophe] went on to explain that, there is no case against Mr
Zuma,” Nkabinde said.
”He [Hlophe] said there was a list containing names of people who were also implicated in the arms deal, he had obtained the list from the [NIA] and he said something to the effect that some of the people who appeared on the list were going to lose their jobs when Mr Zuma becomes president,” said Nkabinde.
Both Nkabinde and Jafta testified how difficult it was for them to deal with the situation but that both made it clear to Hlophe that it was improper to discuss the Zuma case.
Mokgoro, in her testimony, told the JSC that she was ”shocked” when Nkabinde told her of Hlophe’s conversation with her in her chambers.
”I went home. I couldn’t think of anything else. I was disturbed. That night I actually couldn’t sleep,” said Mokgoro.
The next day, she took Judge Kate O’Regan in her confidence, and asked her if she was overreacting.
”She [O’Regan] simply confirmed my feelings. We encouraged Nkabinde to report the matter. There was a need, I thought, to report this matter as soon as possible.”
O’Regan in the meantime informed Deputy Chief Justice Dikgang Moseneke of the matter, and shortly after that Nkabinde spoke directly to Chief Justice Pius Langa and informed him of the conversation with Hlophe.
Mokgoro said she was also very concerned about the fact that Hlophe seemed to have inside knowledge of the note that was written by Nkabinde.
While working from home one weekend, all Mokgoro’s emails discussing the Zuma case with the other judges had disappeared from her computer, she told the JSC.
”I was worried because at the time we were discussing important cases, including the Zuma [case]. We were sending emails up and down.
”I was concerned there might be a leakage somewhere about our emails. I had felt, oh my goodness, why is only this group of emails [between the judges] affected, our computers were probably hacked or something,” said Mokgoro.
But the court’s internet technology director assured her that was unlikely.
The JSC is also investigating a complaint from Hlophe against the judges of the Constitutional Court. He says the judges infringed on his rights when they made the allegation against him public in a media statement without giving him the opportunity to respond.
But Mokgoro argued, as did Langa and Moseneke in their testimonies on Tuesday, that the judges of the Constitutional Court were merely complainants in the matter and that it was up to the JSC to hear all sides of the story.
”If there was any injury that had been done, in my view, Judge Hlophe had done that to himself,” said Mokgoro.
”We had no legal standing to ask the Judge President for his side of the story. It was very important to let the public know — in this country we don’t wheel and deal in justice. It was very important to reassure the public, that if there is anybody anywhere with similar motives, it has to be nipped in the bud,” said Mokgoro.
The hearing continues. — Sapa