Judge Jafta revisits Hlophe controversy

Supreme Court of Appeal Judge Chris Jafta had to go over the controversy involving his friend, Western Cape Judge President John Hlophe, yet again when he was interviewed for a post on the Constitutional Court on Monday.

Advocate Marumo Moerane broached the subject by saying it had been the “most serious matter” the Judicial Service Commission (JSC) had ever had to deal with.

“It was marked by bitterness and rather harsh language,” said Moerane in the vast hall in Soweto’s Kliptown, adding that it had adversely affected many people.

The tradition during the interviews has been to declare a past friendship or association, and during the JSC preliminary investigation into Hlophe, the committee heard that the two were old friends dating back to when they were academics.

Jafta was acting at the Constitutional Court when it became public that the judges laid a complaint against Hlophe after he made what they considered an inappropriate approach to Jafta and Judge Bess Nkabinde while they were writing a judgement on President Jacob Zuma.

Jafta agreed it had been painful, and had affected his family too, but told the JSC during his interview that he considered the matter closed.

He was asked by commissioner Professor Johann Neethling to explain media reports that appeared to show that he had changed his mind about the original complaint, but Jafta said this was incorrect.

He said after Hlophe’s visit to the Constitutional Court while that judgment was being written “one could make the inference that there was an attempt to influence”.

“So there was no stage that I had a different view. I was drawing an inference from those facts, on the totality of the facts.”

Once the Hlophe “question” was over, Jafta turned his attention to how expensive it is to lodge a legal challenge, and spoke passionately about how this denies many people access to justice.

“Something must be done—first to bring down legal costs,” he said, adding that the state should also do something to finance litigation on behalf of poor people.

This would also help to develop customary law.

His interview was followed by that of Johannesburg High Court Judge Mohamed Jajbhay, whose cases include ordering the Sunday Times to return former health minister Manto Tshabalala-Msimang’s medical records.

Asked whether he doubted that judgment, he said that once he ruled, he stuck by his decision and after that, no other medical details were published.

However, “as a human being”, he said as a judge working by himself, he would sometimes like to have other judges to discuss a matter with.

‘Well calibrated’
Meanwhile, Judge Sisi Khampepe was not upset that her recommendations on the Scorpions’ future were ignored, she told the JSC during her interview for a post on the Constitutional Court.

“We can’t be disappointed, we are of service to both the members of the community and the government.
How they take our recommendations is beyond our control,” said Khampepe, who led a commission of inquiry on the Scorpions, a unit of prosecuting investigators that used to fall under the National Prosecuting Authority (NPA).

One of the Scorpions’ cases was the now-abandoned investigation into corruption charges against Zuma before he was president.

Apart from tensions between the Scorpions and the police, the unit was also accused of having an anti-African National Congress agenda and a conspiracy against Zuma.

The Scorpions no longer exist and have been replaced by the Hawks, which fall under the police, but Khampepe, a former deputy national director of public prosecutions, had recommended that the unit stayed within the NPA.

She said there was never political pressure relating to her decision.

Speaking in a manner that Justice Minister Jeff Radebe described as “well calibrated”, she spoke of her days “running around at night” coming to the aid of workers arrested while on strikes, and how she had studied at Harvard and worked on the Truth and Reconciliation Commission.

She said her reconciliation skills were put to the test when dealing with the police and Scorpions during the commission.

She told the JSC it was important to have more women in the judiciary as it would help women have more confidence in the system.

It would also bring the different perspective of women when adjudicating issues.—Sapa

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