The judicial conduct tribunal investigating Western Cape judge president John Hlophe on Thursday ruled that proceedings continue after it dismissed various objections raised about its legality and jurisdiction.
Tribunal president retired judge Joop Labaschagne dismissed the joint objection, brought by counsel for Constitutional Court judges Bess Nkabinde and Chris Jafta and joined by Hlophe's lawyers, that there was no complaint against the judge president as a statement under oath or affidavit – required in terms of Section 14 of the amended Judicial Service Commission Act.
Labaschagne said he would furnish reasons for this decision in his report to the Judicial Service Commission.
While lawyers acting for Nkabinde and Jafta asked for a postponement to allow them to consult their clients, Hlophe's lawyers were quick to the offensive, requesting that counsel for the remaining Constitutional Court judges furnish a list of witnesses they intended to call and the "batting order" for the witnesses.
Hlophe's lead counsel, Courtenay Griffiths QC, also requested documentation they previously asked for but had not received. These included the minutes of a meeting between Jafta; Nkabinde; former chief justice, the late Pius Langa; and deputy chief justice Dikgang Moseneke prior to the full bench of the Constitutional Court lodging a complaint against Hlophe in 2008.
Griffiths also requested "all contemporaneous material", including various correspondence between the Constitutional Court judges "prior to making the joint statement" about the complaint against Hlophe.
Griffiths said this evidence was "prima facie relevant" to his client's argument.
'Best scenario ever'
There appears an attempt to increase the spotlight on what went on between the various Constitutional Court judges – and Moseneke's role in that – prior to the joint complaint being lodged.
Hlophe's lawyer Barnabas Xulu said the decision was the "best scenario ever" as his client had "been vilified and called names" and that he was eager for the matter to proceed so that he could clear his name.
Xulu said Moseneke's testimony was "very critical" to understand how the initial complaint against Hlophe was lodged – especially as both the most affected parties, Nkabinde and Jafta, indicated that they did not believe a formal complaint was necessary at the time – and still maintain this stance.
The Hlophe saga goes back to 2008 when it has been alleged that Hlophe met Nkabinde and Jafta in the respective judges' chambers at Constitutional Hill in Braamfontein. It has been alleged that at these meetings, 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 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 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 allegedly told him that Zuma, like Hlophe, was "persecuted" and the case should be looked at properly, or words to the effect, that Jafta was the last hope.