/ 17 March 2016

Hlophe matter must finally be laid to rest

Judge John Hlophe.
Judge John Hlophe.

In May 2008, Chief Justice Pius Langa and the 11 other justices of the Constitutional Court lodged a complaint with the Judicial Service Commission (JSC) against Western Cape Judge President John Hlophe.

They alleged that earlier that year Hlophe had sought improperly to influence the outcome of a case dealing with the legality of a search-and-seizure operation in a matter involving Thint (Pty) Ltd and Jacob Zuma, a year before Zuma assumed office as president of the republic.

The complaint was based on an allegation that Hlophe had improperly approached Justices Bess Nkabinde and Chris Jafta, who were part of the court that had heard the Thint/Zuma case and, in which, at that point, judgment had been reserved.

A flavour of the nature of the complaint can be gleaned from the following passage of the statement lodged with the JSC by the chief justice, which was confirmed by all the justices who formed part of the complaint: “Hlophe JP then turned to discuss the Zuma/Thint cases and said they were important cases for the future of Mr Zuma. He said that the issue of privilege was an important aspect of the case for the prosecution … Nkabinde J expressed concern to Langa CJ and Moseneke DCJ that she had composed a post-hearing note on the specific issue of privilege and proposed a preliminary conclusion on it [post-hearing notes are circulated among judges as a precursor to their deliberations].

“She was also puzzled as to why Hlophe JP had selected the issue of privilege for discussion and wondered how he could have known that she had written on this issue. She was concerned as to how Hlophe JP had obtained this information about the Zuma/Thint cases.” These allegations were hotly denied by Hlophe.

Nearly eight years later, the complaint has not been resolved. After numerous court cases, the issue was heard by a tribunal constituted by the JSC and headed by retired judge Joop Labuschagne in October 2013.

At this hearing, Nkabinde and Jafta’s legal representatives raised legal objections to the proceedings, arguing that because the complaint had been lodged in 2008 the procedures of that time should be employed, rather than the newer tribunal mechanism of 2010.

Further, they contended that the appointment of a member of the National Prosecuting Authority (NPA) to be the prosecutor in the hearing constituted a breach of the doctrine of separation of powers, in that the proceedings involved the alleged misconduct of a judge. The NPA was thus precluded, they said, from participating in the process on the basis of this doctrine.

For the sake of accuracy, it is necessary to point out that Hlophe did not join in any of these objections. Also, Nkabinde and Jafta rejected allegations that they were not prepared to pursue the complaint of which they had been a part.

Nkabinde said: “These damaging and unhelpful perceptions are far from correct. Any suggestion that we refuse to testify misses the point. We reiterate that we do not have the slightest problem testifying before a properly constituted structure seeking to resolve the complaint that may have been properly lodged with the JSC either under the old rules or in terms of the amended JSC Act. It needs to be emphasised also that we have never held back or delayed the proceedings of the JSC. This is underscored by the transcript of the proceedings of the JSC. We mention further, at the risk of repetition, that we have testified before committees of the JSC under the old rules. We do not take kindly to the damaging and unhelpful insinuations that we are ‘backtracking’ on the original complaint. Far from it.”

The objections were rejected by Labuschagne, following which the two justices sought relief from the Pretoria high court. A full Bench dismissed their application and the further application for leave to appeal to the Supreme Court of Appeal (SCA), which nonetheless agreed to hear the matter on petition.

Last week, the SCA dismissed the appeal finding, which was, in effect, that the objections raised to the continuation of the Labuschagne tribunal were devoid of legal merit.

It would be reasonable to expect that, eight judges having found there is no legal problem with the process, the matter will finally, eight years later, be brought to finality.

In his judgement, Judge Mahomed Navsa of the appeal court said: “The judicial image in South Africa cannot afford to be further tarnished in this manner. As can be seen from the extensive litigation referred to above, each of the protagonists, including the JSC, has contributed to the delay. There should be a concerted effort and determination on the part of everyone concerned for the matter finally to be put to rest. It should be dealt with and finalised with all deliberate speed, with due regard to the rights of all concerned. After all, as observed by Horace as long ago as … 13 BC, ‘[a] good and faithful judge ever prefers the honourable to the expedient’. The country expects nothing less.”

Navsa noted that counsel for Nkabinde and Jafta had remarked that this dispute would never end. As he observed, this is a disturbing statement. There is already precedent that the case cannot be heard by the Constitutional Court. Any further attempt to delay it can only redound to the discredit of the judicial institution.