/ 24 May 2009

Hlophe on Zuma’s yellow brick road

Western Cape Judge President John Hlophe’s bid to dodge a Judicial Service Commission’s (JSC) recommendation that he be impeached is increasingly resembling the strategy that got Jacob Zuma off the hook.

Hlophe has been accused by 13 permanent and acting judges of the Constitutional Court of attempting to influence two of them in a case involving Zuma. Hlophe has repeatedly denied this and he subsequently laid a counter-complaint against the judges for infringing his dignity and privacy rights by releasing a media statement about their allegations against him.

This week the Young Communist League (YCL) entered the fray, calling for the quashing of all charges against Hlophe and for new Justice Minister Jeff Radebe to institute an inquiry into whether Constitutional Court judges, including Chief Justice Pius Langa, “were conniving against Hlophe”.

The YCL move comes after a non-profit group called The Justice for Hlophe Alliance last Friday accused the JSC of being “preoccupied with carrying out a political agenda against Hlophe”. The group’s spokesperson, Durban-based business consultant Percy Gumbi, this week repeated the allegation.

In a development reminiscent of the campaign to have charges against Zuma withdrawn, Gumbi added that the alliance would launch a website, similar to the Friends of Jacob Zuma site, to generate support for Hlophe.

The YCL was calling for an inquiry into the judges of the highest court because the Hlophe saga had resulted in an “abnormal” state of affairs, league spokesperson Castro Ngobese told the Mail & Guardian. He said it was not in the public interest for the JSC hearings against Hlophe to proceed and intense lobbying of ANC alliance leaders would now commence.

Hlophe’s legal team, which has accused the JSC of bias and of being improperly constituted, has consistently maintained that Hlophe is not deliberately delaying his impeachment hearing, but exercising his legal rights.

A full Bench of the South Gauteng High Court, consisting of judges Nigel Willis, George Maluleke and Morwa Tsoka, this week reserved judgment on Hlophe’s application to have the JSC hearing set aside and declared null and void. Presiding Judge Willis encouraged Hlophe and the JSC to reach a settlement, indicating that the court was leaning towards the view that Hlophe’s application was premature. Willis gave the feuding parties until Friday (May 22) to reach a settlement and promised to delay judgment by “a week or 10 days”.

On Wednesday the JSC sent a letter to Hlophe’s attorney, Barnabas Xulu, proposing settlement terms that would lead to the resumption of the hearing. These terms would allow Hlophe to go before the hearing, afford him the opportunity to cross-examine the judges who have already testified, make “any submissions he chooses”, “lead his own evidence” and bring his own witnesses.

But the JSC offer confirms the “element of bias” on the commission’s part, Xulu said: “You can’t do [Hlophe] wrong and then come back and say, ‘I am going to be a good boy’.” Xulu insisted that Hlophe would appear only in front of a reconstituted JSC.

He said the next step in Hlophe’s legal strategy, irrespective of the South Gauteng High Court judgment, would be to challenge Supreme Court of Appeal president Lex Mpati’s sworn affidavit denying that the JSC had said anything about the “shenanigans” of the “new [Zuma] administration” in confidential deliberations within the commission.

This derives from JSC commissioner Mvuseni Ngubane’s widely reported letter to JSC members complaining about such discussions within the JSC, allegedly relating to the fate of the Hlophe hearings under a new government.

Mpati’s affidavit, which is supported by human rights lawyer George Bizos, said: “I point out that during deliberations of the JSC, I kept several notes of material points that were made by its members, in the course of the deliberations on whether to grant or refuse the further postponement requested on April 7 2009.

“From my notes, no member of the JSC present in the deliberations made use of the word ‘shenanigans’ or referred to the new ‘administration’. I do recall that Adv Bizos SC used the word ‘stratagem’, with reference to the conduct of the applicant’s legal representative.”

Speaking to the M&G this week, Ngubane stood by his dissenting view, which has since been used by the Hlophe lobby group to discredit the JSC process.

Taking a more cautious stance than the YCL, ANC Youth League spokesperson Paseka Letsatsi commented: “We think they must sort out this matter among themselves because we believe the infighting has brought the judiciary into disrepute.”