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Hlope tribunal: Yet another delay

A tribunal to investigate a gross misconduct complaint against Western Cape Judge President (JP) John Hlophe has been delayed yet again — after one of the members of the judicial conduct tribunal recused himself from the panel, saying the judiciary did “not need this at this stage”.

The complaint against the JP has been dragging for over a decade.

In May 2008, the judicial service commission (JSC) received a complaint from all the justices of the Constitutional court that Hlophe had improperly sought to influence the outcome of cases — 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 the outcome of the judgment would determine whether he would also become president of the republic.

The tribunal was finally scheduled to proceed on Monday and to continue for two weeks. However, before the proceedings got underway, chairperson retired judge Joop Labuschagne said Judge Musi had a statement to make.

Free State Judge Cagney Musi — one of tribunal’s three-member panel — referred to an affidavit filed by Hlophe on Monday morning, in which Hlophe referred to a June 2017 judgment of the Supreme Court of Appeal that had criticised Hlophe.

Hlophe said he later heard that, a month later, in July 2017, Musi had made disparaging remarks about him while chatting at a social gathering in the presence of other judges in KwaZulu-Natal.

Hlophe said: “It was reported to me that Honourable Mr Justice Musi uttered words to the effect that it was not surprising that I would act in the manner described in that judgment …. as this was consistent with my controversial character”.

He had previously called Musi about this — and Musi had denied the allegations — and then written to him about it also.

READ MORE: Hlophe complaint faces fresh hurdle

On Monday, Musi said he had initially decided to refuse to recuse himself. He added that Hlophe’s affidavit alleged “that a particular judge, whose identity is unknown, is prepared to make an affidavit… Unfortunately, the affidavit by Judge President Hlophe… is entirely based on hearsay evidence, there is no direct evidence whatsoever.

“The furthest the affidavit goes is that the particular judge will be prepared to make a statement at some future time.”

However, he had now decided to recuse himself in the interests of justice and the judiciary, he said.

“Having considered the manner in which this whole issue has unfolded, the fact that Judge President Hlophe called me and made certain ex parte communications to me without having the other parties there, the interests of justice and obviously the interests of the judiciary — I do not think the judiciary needs this at this stage,” he said.

Hlophe’s counsel, Thabani Masuku, then asked to respond the Musi’s statement saying it was “far-reaching”. He said he had noted that Musi had still not denied the allegations of having made disparaging remarks. But Labuschagne responded that he had, and that in any event, any dispute of fact should be argued at a later stage.

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

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