Hlophe complaint faces fresh hurdle

Western Cape Judge President John Hlophe has asked for the recusal of one member of the panel investigating a gross misconduct complaint against him.

In a letter to Bloemfontein high court Judge Cagney Musi last week, Hlophe accuses the judge, one of three people who must decide whether he is guilty of gross misconduct, of having made disparaging comments about him and therefore not having “an open mind” about the complaint against Hlophe.

After a decade-long delay, a judicial conduct tribunal is to begin on Monday July 2. The recusal application could mean yet another delay to the finalisation of a complaint that, when it was first made, stunned the judiciary and the country.

In May 2008, the Judicial Service Commission (JSC) received a misconduct complaint unlike any it had received before (or since): every justice of the Constitutional Court complained that Hlophe had improperly sought to influence the outcome of a judgment, then pending before the country’s highest court, related to the prosecution of Jacob Zuma on corruption charges. At the time, Zuma was president of the ANC and it was widely believed that the outcome of the judgment would determine whether he would also become president of the republic.

The Hlophe complaint was the first serious allegation of an attempt to interfere politically in the judiciary. That the alleged interference came from within its own ranks made it so much worse.

But the complaint is yet to be decided by the JSC, whose processes have been beset by litigation. It was put on hold several times, reversed or set aside by the courts in different court cases over the years.

Now there may be another delay: Hlophe has asked Musi to recuse himself, saying Musi had made disparaging remarks about him while chatting at a social gathering in the presence of other judges in KwaZulu-Natal in July 2017.

In a letter from his attorney, Barnabas Xulu, Xulu refers to a discussion about “the findings of the Supreme Court of Appeal”.

The letter does not identify the judgment of the appeal court and Xulu could not be reached for comment. But in June 2017, an SCA judgment had criticised Hlophe for assigning a case to himself in which Xulu was the attorney. The judgment was widely reported in the media.

Xulu, in his letter dated June 22 2018, said to Musi: “You uttered words to the effect that it was not surprising that our client would act in the manner found in the judgment as this was consistent with his character. These words were intended to mean and were understood to mean that our client has a propensity to act in an unethical manner.”

Xulu said, when Hlophe heard about this remark, he called Musi to ask whether he had said this, but Musi had denied it and said he would not consider recusing himself.

But “our client has established that you indeed uttered disparaging remarks … in the presence of approximately six members of the judiciary. Your denial to him of having made such disparaging remarks is of some considerable concern given your position as a judge and a panel member of the judicial conduct tribunal,” Xulu said.

Hlophe was “apprehensive” that Musi would not be able to bring a fair and unbiased mind to the tribunal hearing.

The letter urged Musi to recuse himself. If he refused to do so, an application would be made for him to do so at the tribunal, said Xulu, who also asked him to consider “the possible delay to the commencement of the main proceedings”.

He also asked Musi to consider what it would mean by “dragging members of the judiciary who were present when you made the alleged utterances … to give their evidence on oath in an application for your recusal”.

JSC secretary Sello Chiloane confirmed that the letter had been received but said any issue of a recusal would be dealt with at the tribunal. Xulu could not be reached for comment.

Hlophe’s attorneys are also demanding the payment of outstanding legal fees.

In another letter dated June 26 to the JSC and the Office of the Chief Justice, Xulu said the chief state law adviser said their claim had prescribed.

“It is now clear that our client’s rights are being disregarded and flatly ignored. Such behaviour amounts to unbridled despotism of one party over another,” said Xulu.

“Should we not receive any feedback in this regard, we will have no other option but to halt any additional efforts and costs to travel to the supposed hearing to convene on 2 July 2018”.

Chiloane said the department of justice was “engaging” with Xulu’s team on the issue of fees.

Rodney Isaacs, the acting chief litigation officer with the department of justice, told the Mail & Guardian that the fees that had been in dispute related to earlier litigation, before the establishment of the tribunal.

As far as these cases were concerned, although the state attorney had initially said the claim had prescribed, the office of the chief litigation officer had now agreed with the state attorney that this matter could be determined by the taxing master of the relevant courts.

As far as the tribunal was concerned, all fees “have been paid up to date”.

“The old cases should not affect the tribunal,” said Isaacs. 

What they said, what he said

First announced by the judges of the Constitutional Court in a media statement, the 2008 complaint against Western Cape Judge President John Hlophe was later detailed by then chief justice Pius Langa in a statement. More details emerged when the judges gave evidence before the JSC.

Hlophe had visited the Constitutional Court on two occasions. The first visit was to see Justice Chris Jafta, then a Supreme Court of Appeal judge doing an acting stint at the Constitutional Court.

During his meeting with Jafta, said Langa, Hlophe had raised the Zuma/Thint cases, saying they needed to be decided “properly”. He said Zuma had been unfairly persecuted, just as he, Hlophe, had been.

Jafta had replied that the cases would be decided properly. Hlophe had said “sesithembele kinina”, translated for the JSC as “you are our last hope”.

Later, Hlophe had visited Justice Bess Nkabinde. Nkabinde had written a post-hearing note on the question of legal privilege, one of the thornier issues in the Zuma/Thint litigation.

Langa said, when Hlophe called to arrange the visit, he had told Nkabinde he was coming there “with a mandate”. In her later evidence she said, when Hlophe visited her, he had said “a concern had been raised that people who are appointed to the Constitutional Court should understand our history”, that he had connections with ministers, whom he advised from time to time, and that he had seen a list from people in intelligence, and that there were people who would be losing their jobs after the elections. He said the case had to be properly decided, she said.

Jafta and Nkabinde both said they believed Hlophe was trying to influence them to favour Zuma, although Jafta said he had not thought so initially.

Hlophe has consistently denied any nefarious intention behind his visits or statements. He said he had talked about the Zuma/Thint judgments because he saw the voluminous case files in Jafta’s office and that he was just interested in the case — in the same way as the whole country was interested in it.

He said “the mandate” he had referred to when he called Nkabinde to arrange a visit was that he had been asked to organise a Commonwealth judges conference. When he did visit Nkabinde, it was she who had said she was writing a note on privilege, he said. He did not speak of connections in intelligence or that anyone would lose their jobs, he said.

Although he did say the case should be properly decided, he denied he said this in the context alleged by Nkabinde. What he meant was that there had been uncertainty created by the SCA judgment and this was why it needed to be decided properly.

Hlophe also said, when he said “sesithembele kinina” to Jafta, it was a parting shot meant as a note of encouragement.

Hlophe had also initially counter-complained, saying the way the justices had gone about their complaint had breached his constitutional rights. He said Langa and then deputy chief justice Dikgang Moseneke were politically motivated and had jumped on the bandwagon with those who were persecuting him ever since he had delivered a report into racism in the judiciary (in 2014). He later dropped his countercomplaint.

According to a 2011 judgment by the SCA, penned by judge of appeal Piet Streicher, “Hlophe JP contradicted almost everything that Nkabinde J” said. These contradictions had to be resolved by testing both sides’ versions in cross-examination. 

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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