Western Cape Judge President John Hlophe views the finding by the Judicial Conduct Tribunal that he committed gross misconduct as wrong in fact and in law and plans to contest it, according to a letter from his lawyer.
“Judge President Hlophe respects that the Judicial Conduct Tribunal has made its decision,” the letter, released late on Tuesday night, states. “He however fundamentally disagrees with the factual and legal findings of the tribunal and will, in due course, address to the appropriate forum his contentions. The tribunal misdirected itself on numerous procedural and substantive issues rendering its findings unjustified.”
Hlophe firmly denies in the letter that he ever set out to influence any justices of the constitutional court to violate their oath of office.
But the tribunal at the weekend said he “appeared to have been on a mission” when he met justices Chris Jafta and Bess Nkabinde a month apart in the autumn of 2008 to discuss a pending case relating to the arms deal corruption charges against Thales and the then aspirant president Jacob Zuma.
Hlophe had, in conversation with Jafta, suggested that the matter should be handled properly and added a phrase to the effect that those on the bench at the apex court were “our last hope”.
The tribunal recommended he be impeached, which is a decision that falls to the national assembly where a vote needs to be carried by a two-thirds majority. But the Judicial Service Commission has to first weigh the finding and if it agrees it will forward the report to parliament.
Hlophe insists in his letter that the tribunal failed to formulate a clear charge for him to answer, because there is no statutory enabling provision to make a contravention of section 165 of the Constitution an offence.
The tribunal, in its 47-page report, dismissed this argument, saying that because it was not a criminal trial the requirement did not apply. Rather, the tribunal was concerned with principles of judicial probity and ethical standards.
But Hlophe maintains that this approach is puzzling. “This approach is self-evidently wrong in that it fails to appreciate the statutory premise on which a complaint of judicial misconduct must be determined.”
The tribunal found that Hlophe had violated the Constitution by attempting to influence judges to betray their oath of office, while flouting the principle that bars judges from broaching a pending matter with those seized with it.
The tribunal said it was inconceivable that he did not know the principle 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.”
In his letter Hlophe also pointed to the delay in bringing the matter to finality. The tribunal gave its ruling nearly 13 years after the initial complaint was brought by the justices of the apex court, but said Hlophe was in no small measure responsible for the delays.
Hlophe then goes on to claim that the tribunal was swayed by the partisan views of retired judge Johann Kriegler and the Democratic Alliance. Freedom Under Law, which Kriegler chairs, and the DA went to court separately, and ultimately successfully, to challenge a decision by the Judicial Services Commission that there was not sufficient evidence to justify a finding of gross misconduct against Hlophe.
“While these outfits celebrate the ruling of the tribunal, [the] judge president is determined to vindicate his name and in so doing, will demonstrate how this findings does not correctly reflect the law and is not based on the facts presented to it,” according to Hlophe’s letter.