In May 2008, South Africa was informed by then chief justice Pius Langa that the justices of the Constitutional Court had lodged a complaint against Western Cape Judge President John Hlophe. They alleged that he had attempted to influence two judges in respect of a case being heard by the Constitutional Court concerning Jacob Zuma, who was not yet president of the country.
More than six years have passed since this dramatic announcement of an unprecedented complaint – and still the dispute remains unresolved. The latest instalment was delivered last Friday in the Johannesburg high court by Judge Haseena Mayat, on behalf of a full Bench, in a review application brought by Constitutional Court justices Bess Nkabinde and Chris Jafta against the Judicial Services Commission (JSC). To understand this latest round, a brief history is necessary.
Nkabinde and Jafta are the two central figures in the proceedings against Hlophe. It was they to whom Hlophe spoke; it appears undisputed that he spoke to both about the Zuma/Thint case and conveyed to Jafta that this was a matter of importance and that the issue of privilege was “very concerning”. By April 2009 the JSC had convened an oral hearing at which six Constitutional Court justices testified, including the two directly involved, plus Langa, Deputy Chief Justice Dikgang Moseneke, and justices Kate O’Regan and Yvonne Mokgoro.
None of the witnesses were subjected to cross-examination. The JSC subcommittee that heard the matter held that the evidence did not justify a finding of gross misconduct on Hlophe’s part. Legal and constitutional nongovernmental organisation Freedom Under Law successfully reviewed this decision in 2011: the Supreme Court of Appeal found that the JSC had failed in its constitutional duty to investigate the complaint properly. In 2012, yet another JSC committee held that it was required to investigate the complaint, but now under a new system created by legislation amending the JSC Act.
The new system was and is more formal, involving the establishment of a tribunal to hear serious complaints against judges. Thus, in January 2013, retired judge Joop Labuschagne was appointed to head the tribunal to determine the complaint against Hlophe and report to the JSC.
At this point, enter Nkabinde and Jafta. When the tribunal sat in September 2013, their legal team – separate from the team representing the other judges – objected to the proceedings. Their view was that the complaint was brought in 2008 under different rules, so the “rules of engagement had been altered”, hence the tribunal was legally incompetent to hear the complaint.
In November 2013, Labuschagne provided reasons for why the tribunal could proceed with its hearing. Dissatisfied, Nkabinde and Jafta brought an application to review the decision of the tribunal.
Commendably, the Johannesburg high court delivered judgment within a week, dismissing the application. Mayat found that there were no vested substantive rights that had been impaired by the application of the new disciplinary procedures which would justify the view that the tribunal should not proceed.
Tellingly, Mayat wrote that “remarkably, the applicants are silent on the undisputed consideration of the public interest in an impartial and independent judiciary”. She further observed that “it is difficult to conceive of any legitimate purpose which may be served by the invalidation of the existing complaint, which was lawfully lodged in 2008”.
Given that the applicants are two members of the country’s highest court, these are remarkable judicial comments. They compound the widespread concern in the legal community as to the wisdom of Nkabinde and Jafta’s course of action at this very late stage in a long-running saga.
The court made short shrift of their other two objections: that the initial complaint was not in the form of an affidavit, and that a member of the National Prosecution Authority (NPA) had been appointed to lead the evidence before the tribunal. The affidavit requirement was only introduced after the complaint was lodged in 2008, so to insist on it here would subvert the very purpose of section 177 of the Constitution, which provides for the removal of a judge. After all, there was no dispute about the legality of the complaint when it was lodged in 2008.
Similarly, the appointment of an evidence leader from the ranks of the NPA could hardly be considered to be in breach of the doctrine of separation of powers between, in this case, the executive and the judiciary.
Where to from here? Given the reasoning of this judgment, it is to be hoped that Nkabinde and Jafta will accept the decision and not resort to the appeal court. Such a course would further prolong this unfortunate event in our judicial history, one that has damaged the image of the institution of which all the main players in this saga are very senior members. It is surely time to bring the proceedings to an expeditious end.