Judge President John Hlophe is likely to face a fresh inquiry by the Judicial Service Commission (JSC) into allegations that he tried to influence judges of the Constitutional Court in a matter affecting President Jacob Zuma.
Ruling on Thursday on an application by legal NGO Freedom Under Law, Judge Piet Streicher and four other judges of the Supreme Court of Appeal (SCA) found that the JSC had been “irrational” and “unreasonable” in its 2009 decision to finalise the inquiry on the allegations against Hlophe before witnesses had been cross-examined.
“The decision of the JSC ‘that the evidence in respect of the complaint does not justify a finding that Hlophe JP is guilty of gross misconduct’ and that the matter is accordingly ‘treated as finalised’ is reviewed and set aside,” reads the judgment.
The court also set side the JSC’s reversal of an earlier decision to hold a formal inquiry into the complaints and to hold a preliminary inquiry instead.
During the April 2009 hearings into the matter, the witnesses, as well as Hlophe, gave their testimonies, but the process was terminated before it reached the stage when the witnesses could be cross-examined.
“The requirement of proof beyond reasonable doubt [to allow the hearing to continue] was not appropriate,” reads the judgment. “Not even in a criminal trial is proof beyond reasonable doubt required before the trial has run its course. “The JSC purported to justify its decision to dismiss the complaint without proceeding to a formal inquiry by saying that cross-examination would serve no purpose — I find the reasoning surprising.”
The five judges said that the JSC’s decision to dismiss the complaint was “an abdication of its constitutional duty to investigate the complaint properly. The dismissal of the complaint was, therefore, unlawful.” The complaint revolved around allegations made by Judge Bess Nkabinde and then acting Constitutional Court judge Chris Jafta that Hlophe had visited them in their offices and tried to influence them in a constitutional matter regarding Zuma.
In his evidence at the time Jafta said that Hlophe had told him that Zuma was “being persecuted” and had said, “You are our last hope”. Constitutional law expert Pierre de Vos said on Thursday that while it was not explicitly ordered by the judgment, the practical effect was that the JSC would have to reopen its inquiry into Hlophe. “The JSC will have to reconvene the matter,” De Vos said. “It will now have to allow for a cross-examination of the various witnesses. You can’t dismiss a complaint on the basis of there being two versions.”
He observed that the SCA had made some “strong statements”. “It basically said that it cannot be in the interests of the judiciary to sweep these legal issues under the carpet. It’s bad for the legal system and it’s bad for the country. Whether one has sympathy for Hlophe or for the judges, if one believes in the integrity of the judicial system, this a good judgment.”