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Misconduct finding against Hlophe means long road to possible impeachment

Thirteen years after the fact, the Judicial Conduct Tribunal of the Judicial Service Commission (JSC) has found Western Cape Judge President John Hlophe was guilty of gross misconduct when he tried to sway two justices of the Constitutional Court in a pending matter linked to the corruption case against former president Jacob Zuma.

The tribunal, in a ruling released at the weekend, found that Hlophe had breached section 165 of the Constitution by attempting to influence justices Chris Jafta and Bess Nkabinde to violate their oath of office and recommended that he be impeached.

A panel of the tribunal, headed by Judge Loop Labuschagne, concluded that Hlophe “appeared to have been on a mission” when he met Jafta and Nkabinde a month apart in the autumn of 2008 to discuss a case pertaining to the legality of the seizure of documents from arms manufacturer Thales.

Its report must now be considered by the full JSC. If it agrees that impeachment is indicated, it will then submit the finding and the report of the tribunal to the national assembly for a decision on whether to remove Hlophe from the bench. But this can only be done through a vote carried with a two-thirds majority.

This means impeachment is neither a foregone conclusion, nor will it happen fast.

The panel dismissed Hlophe’s contention that there was no rule prohibiting judges in other divisions from discussing pending matters with the judges seized with the matter.

“What we are concerned with here are issues of judicial probity and ethical standards, rather than rules of law,” the panel said.

Hlophe had further insisted that he was ignorant of the principle, as summed up by former chief justice Pius Langa, that prevented judges from other divisions discussing the merits of a matter with judges of the constitutional court when the matter is still pending.

The panel observed: “That principle is deeply rooted in the legal profession.”

It added that it was instilled through years of practice as an attorney or advocate, and said it was not clear if Hlophe ever practised as either before ascending to the bench, but that it was inconceivable that he had not learnt this by the time he canvassed Jafta and Nkabinde because he had by then been a high court judge for 13 years.

“He is expected to have been aware of it and, on the balance, he was.”

The panel said it dealt with the issue at considerable length, though it was not complex, because it was necessary to correct any misperception or confusion Hlophe’s views may have created.

“Aspirant and newly appointed judges might take to heart his forceful assertions on this issue as correct. They are not. For their sake, it is important to restate the principle with clarity and unambiguity.”

Turning to the details of his discussion with Nkabinde, the panel described it as “politically laden”, noting that he prefaced his assertion that there was no case against Zuma and that he might become president, by “bragging” about his own political connections.

“This inference is irresistible and points to an attempt to influence,” it concluded.

The panel was scathing of Hlophe’s claims that Nkabinde and Jafta were, respectively, a vacillating witness and recalcitrant complainant, who were pressured into falsely accusing him by Langa and then deputy chief justice Dikgang Moseneke.

All 11 justices of the constitutional court instituted a complaint against Hlophe in May 2008, but he hit back with a counter complaint in which he accused them of breaching the Constitution and violating his rights by doing so before having heard his version of events.

It was an assault on the integrity of all four, but Hlophe’s accusations that Langa and Moseneke had a political agenda, had acted dishonestly and had sought to influence two colleagues to act against their conscience were particularly egregious.

Allegations of dishonesty against judges are serious, and should never be made without evidence. Yet Hlophe persisted in this vein for years, including before the panel, which finally heard the matter in December last year.

“We consider it our duty to vindicate the integrity of the judges of the constitutional court, in particular Chief Justice Pius Langa, Deputy Chief Justice Dikgang Moseneke, Justice Nkabinde and Justice Jafta whose integrity has been called into question by Judge President Hlophe’s unfounded and scurrilous attacks.”

Hlophe’s argument that the delays in the matter had compromised his right to a fair hearing was dismissed with some scorn and the comment that these were “in no small measure” caused by the judge himself.

The panel, which included Judge Tati Makgoka and attorney Nishani Pather, was unanimous in its view that Hlophe was guilty of misconduct as envisioned in section 177 of the Constitution. 

Hlophe is expected in coming weeks to rule on an application by the National Prosecuting Authority for leave to appeal his controversial dismissal of corruption charges against ANC MP Bongani Bongo.

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