Western Cape Judge President John Hlophe compromised the independence of South Africa’s constitutional court when he approached judges Bess Nkabinde and Chris Jafta in 2008 to convince them to give rulings in favour of former president Jacob Zuma in two cases implicating him in corruption.
In April, the tribunal unanimously found Hlophe guilty of gross misconduct for telling the two constitutional court judges that “you are our last hope” to save Zuma from his legal troubles.
The tribunal, headed by retired Judge Loop Labuschagne, said Hlophe had breached section 165 of the Constitution by attempting to influence Jafta and Nkabinde to violate their oath of office.
Giving its reasons to uphold the tribunal’s recommendation, the JSC said: “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
“No person or organ of state may interfere with the functioning of the courts. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.”
On Thursday, the JSC delivered the majority and minority decisions in the matter to the parties involved and referred the matter to the National Assembly in terms of the relevant provisions of the Constitution and applicable legislation.
Stressing the independence of the courts, the JSC recalled an earlier statement on judicial independence of the supreme court of appeal, which reads: “Any attempt by an outsider to improperly influence a pending judgment of a court constitutes a threat to the independence, impartiality, dignity and effectiveness of that court.”
The JSC said it was of the view that Hlophe knew of the relevant standards of judicial ethics.
Despite this knowledge, he continued to compromise the court’s independence in that he pursued a discussion with Nkabinde regarding the Zuma cases “knowing she had sat on the bench and judgment was still pending”, said the JSC.
The JSC dismissed Hlophe’s justification of his conduct regarding Nkabinde and Jafta. In his evidence, Hlophe argued that formal deliberations, as well as private consultations and debates among judges, are and must remain confidential.
The JSC found that Hlophe’s “insistence” that judges frequently discuss their matters “is no answer” and that the article from which he drew his argument could not be “plucked out of context and used to justify Judge President Hlophe’s conduct when the overwhelming, constitutionally-endorsed values of judicial independence and impartiality would as a result be compromised”.
The JSC found that Hlophe’s conduct “rendered him guilty of gross misconduct as envisaged in section 177(1)(a) of the Constitution, in that he attempted to influence, improperly, justices Nkabinde and Jafta to decide matters that were then pending before the constitutional court in favour of particular litigants”.
The National Assembly will now vote on whether Hlophe should be removed from the bench.