The tribunal that will be set up by the Judicial Service Commission (JSC) to deal with the complaint of gross judicial misconduct – brought by Constitutional Court judges against Cape Judge President John Hlophe – could face a legal challenge.
Hlophe's attorney Barnabas Xulu told the Mail & Guardian on Thursday that he did not believe the complaint made by the judges in 2008 could be dealt with "retrospectively" using new legislation.
"There is a rule widely applied and recognised against the retrospective application of legislation that the [JSC] violates by invoking the new JSC Act, in order to resolve this complaint which arose before the promulgation of the amended JSC Act," he said.
The long-running issue of how to deal with the matter has presented an unprecedented headache for the JSC.
The complaint was lodged in 2008, when seven of the 11 sitting Constitutional Court judges complained that Hlophe had tried to improperly influence two of its judges to rule in favour of President Jacob Zuma in a case involving the country's multi-billion rand arms deal.
A breakthrough came on Thursday when the JSC announced its recently convened judicial conduct committee had recommended it set up a tribunal.
"The committee considered that this complaint, if established, will prima facie indicate gross misconduct which may lead to impeachment. Accordingly, the committee has recommended to the [JSC] that a tribunal be appointed to investigate it," the JSC announced. "In doing so, the committee took into account inter alia the clear pronouncements of the Supreme Court of Appeal that the [JSC] must make a determination whether the judge president was guilty of gross misconduct or not."
Xulu said he would not try to stop the JSC from setting up a tribunal, as resources were slim and his legal fees had still not been paid by the justice department.
Last month Justice Minister Jeff Radebe issued a press statement announcing that he would be paying Hlophe's legal fees, after the judicial conduct committee was alerted by Xulu that he was being hamstrung by the government withholding his firm's fees.
Xulu told the M&G he was owed more than R2-million in trying to fight Hlophe's legal battles.
Hlophe has claimed that he is entitled, as a judge president, to have his legal fees paid.
The tribunal will now have the spotlight cast over it, as another complaint lodged by Freedom Under Law was dismissed by the judicial conduct committee.
"The committee accepted that some of the utterances made by judge president Hlophe in the course of the proceedings that followed upon the laying of the complaint by the judges of the Constitutional Court will, if established, indicate gross misconduct on the part of the judge. However, the committee considered the circumstances under which the utterances were made and came to the conclusion that in view of such circumstances it is not likely that such misconduct would justify impeachment," it said.
In these circumstances, the proper course to follow would be to recommend that an inquiry be held, it said.
"This would expose the judge to complaints and penalties that were not there when the complaint arose," the committee found. "This would violate the established rule of law against retrospective application of legislation."
As a result, the committee stated that the Freedom under Law complaint could therefore not be proceeded with, and was accordingly dismissed.
But the tribunal could face other legal problems too, which were outlined in Hlophe's submission to the judicial conduct committee.
The code of judicial conduct – which is expected to serve as the prevailing standard of judicial conduct which judges should adhere to – has not yet been promulgated, it claims.
Hlophe's submission also challenges whether it is in the interest of "judicial independence" to allow a tribunal to deal with the case. "The committee must decide whether this matter can ever be dealt with lawfully and fairly given its history, the procedural and substantive violations that the JSC has been held to have committed and the interests of judicial independence."
The M&G understands that only three of the six people meant to sit on the committee took part in some of the discussions, while at other times there were four.
The committee comprises Chief Justice Mogoeng Mogoeng, Deputy Chief Justice Dikgang Moseneke and four judges, but Mogoeng and Moseneke had to recuse themselves.
This unusual situation arose because the chief justice was involved in trying to "broker" a deal between the parties, while his deputy was one of the complainants in the case, said the spokesperson for the JSC, Dumisa Ntsebeza.
The third person who recused himself is Justice Lex Mpati, the president of the Supreme Court of Appeal, which previously assessed the case.
Ntsebeza said the committee, which falls under the JSC, faced the time-old problems in dealing with the Hlophe case. "Wherever you go in this matter, everybody is compromised," he said.
Breaching constitutional rights
Following the complaint by the Constitutional Court judges against Hlophe, he counter-complained that the judges had breached his constitutional rights in the way they went about their complaint.
The JSC cleared both sides in 2009, but the decision was immediately challenged in the Supreme Court of Appeal by Western Cape Premier Helen Zille, and in a separate case, by Freedom Under Law.
When the JSC lost both cases, it decided not to pursue litigation. Hlophe, on the other hand, is challenging both judgments.
In March this year, the Constitutional Court declined to hear Hlophe's case because so many of its own judges were involved, and the matter was referred to the judicial conduct committee.
Another challenge posed in Hlophe's submission is whether he should be held liable for gross judicial misconduct for "opinions, views and beliefs expressed in the course of a private-in-chamber conversation with judges who he considered to be his friends.
"In other words, should it be considered gross judicial misconduct when a judge expresses a view, opinion, or belief to another judge in private on a matter that is pending or has been decided by that judge? " the submission questions. "Should there be a complete bar to in-chamber conversations between judges on matters that are pending before them in order to insulate presiding judges from 'attempts to persuade' by others?"
The public pressure brought to bear on the judge president to resign from the bench, even before the JSC had even considered how to deal with the case, had given the "inescapable impression" that the complaint was intended to mobilise and generate adverse publicity that would force him off the bench, Hlophe's submission contended.
In the analysis of the facts and evidence relevant to the complaint, Hlophe's submission said that the complaint turned, essentially, on what transpired during the course of two conversations, one between Hlophe and Justice Chris Jafta, and the other between the Hlophe and Justice Bess Nkabinde.
In assessing Jafta's evidence given at a hearing in 2009, Hlophe contends in his submission that at the time of his meeting with him, Jafta had not formed the view that there had been a deliberate attempt to influence him.
"His concern was that, if the discussion continued, even if innocent, it 'might end up' influencing him," the Hlophe submission claims. "For this reason, he ended the discussion of the Zuma matters, and the judge president Hlophe did not pursue the topic."
The Hlophe submission states that, in Jafta's own version, he did not form the view at the time that there had been improper conduct on the judge president's part.
In 2009 Jafta revisited the Hlophe controversy when he was interviewed by the JSC for a post on the Constitutional Court. Jafta was acting at the Constitutional Court when the judges laid the complaint against Hlophe, and he was asked to explain media reports which might have changed his mind on the issue.
He was quoted as saying that Hlophe's visit to the Constitutional Court while the 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," Jafta told the JSC. "I was drawing an inference from those facts, on the totality of the facts."
Hlophe's submission to the judicial conduct committee said Nkabinde had testified that when the judge president telephoned her saying he would like to visit her, he said that he had a "mandate".
The submission alleges Hlophe had provided an explanation for this, saying the reference to a "mandate" was entirely plausible as he had been referring to a mandate from the chief justice in relation to a Commonwealth conference on judges and magistrates to be held in Cape Town.