If the disciplinary conduct tribunal president, retired judge Joop Labuschagne, decides on Tuesday that the hearing into Cape Judge President John Hlophe should go ahead, then indications are that the role of Deputy Chief Justice Dikgang Moseneke in the filing of the initial 2008 complaint against Hlophe will come under intense scrutiny by the latter’s legal team.
Hlophe's lead counsel Courtenay Griffiths QC told the commission during the first day of the tribunal on Monday that his team had requested various documents relating to Moseneke that they had "yet to receive".
"We’d like ask him some questions," Griffiths said bluntly about the defence’s intention of quizzing Moseneke. The defence wants to quiz the chief justice on his "non-hearsay" account of a meeting held between him, former chief justice Pius Langa, now deceased, then acting Constitutional Court judge Chris Jafta, and his colleague Bess Nkabinde, following an allegedly inappropriate approach by Hlophe to influence a pending Constitutional Court judgment in 2008.
Griffiths said his team are yet to receive the minutes of that meeting or other documents including letters, emails and various other correspondence that Moseneke had mentioned while testifying at previous Judicial Service Commission inquiries into the five-year-long saga of whether Hlophe had acted inappropriately in approaching Jafta and Nkabinde.
Indications are that Hlophe's defence team will test Moseneke's role in filing the complaint. The complaint was lodged despite the stated feeling of both Jafta and Nkabinde that they had conclusively dealt with Hlophe's advances and that an official complaint was unnecessary.
It has been alleged that during these meetings in the respective judges' chambers at Constitutional Hill in Braamfontein in 2008, Hlophe sought to persuade Jafta and Nkabinde in the Zuma/Thint matter before the court and where judgment was pending. The case related to corruption charges in the arms deal against President Jacob Zuma – then an ordinary citizen.
The charges were subsequently dropped by the National Prosecuting Authority less than a year later, but the Hlophe saga has dragged on.
According to the initial complaint lodged by Langa and confirmed by all the judges of the Constitutional Court, Hlophe allegedly told Nkabinde that "he had a mandate" to approach her, adding that the privilege issue (which allows someone legal prerogative to withhold information) in the Zuma/Thint matter had to be decided "properly".
The issue of privilege related to two sealed boxes of Zuma's financial records that the Scorpions had seized from the offices of his lawyer, Michael Hulley.
Nkabinde, who was writing post-hearing notes on privilege for the Constitutional Court, also apparently told her superiors that Hlophe had allegedly stated he was politically well connected and connected to members of national intelligence, implying that he was well informed about what was happening at the court.
Jafta said during his meeting with Hlophe, the judge president had allegedly told him that Zuma, like Hlophe, had been "persecuted" and the case should be looked at properly, or words to the effect, that Jafta was the last hope.
Monday's hearing was dominated by the technical points around whether the tribunal should – and was legally allowed to – continue its work.
At a pre-trial hearing on September 21, Nkabinde and Jafta questioned whether the judicial conduct tribunal had the legal jurisdiction to do so in terms of section 14 of the Judicial Service Commission Act, which was amended in 2008.
The judges noted that in terms of the Act a complaint against a judge "must be … lodged by means of an affidavit or an affirmed statement". Their counsel submitted that, "according to the record furnished to the two justices, no such complaint on oath or affirmation has been availed".
According to the judges, this means "they will contend that they are under no obligation" to attend the hearing, raising questions about whether the process will go on or be jettisoned.
Jafta and Nkabinde's lead counsel, advocate Selby Mbenenge, also advanced the position that because the rules governing the tribunal had not been gazetted, the matter could not legally go any further.
Likewise, Hlophe's team reiterated the view that because a formal complaint in terms of section 14 had not been lodged – and both Jafta and Nkabinde had indicated they did not think a complaint was necessary – there was no actual complaint Hlophe had to answer to.
Griffiths had argued that section 14 was the "trigger" for a disciplinary tribunal to be set up and since there was no official complaint in his estimation – and neither Jafta nor Nkabinde had indicated they were willing to lodge one – this created a "practical difficulty" to the commission, especially since "voluntariness [to lodge a complaint] is the essence of section 14".
"Where, in practical terms, does the tribunal go to from here if the two most important judges in this say there is no complaint?" said Griffiths.
Advocate Gilbert Marcus, acting for the remaining Constitutional Court judges, argued that while Hlophe had approached just Jafta and Nkabinde, this was construed as an attempt to taint the functioning and integrity of the entire court, hence a "collective complaint" by the entire Bench was lodged.
This 2008 complaint, said Marcus citing previous Constitutional Court judgments retrospectively, could not be invalidated by the JSC Act amendments which came into effect in 2010.
The matter continues on Tuesday.