Western Cape Judge President John Hlophe is pictured at Premier Hotel, OR Tambo International Airport, 7 December 2020, at the gross misconduct tribunal where he's accused of trying to influence 2 ConCourt justices in Zuma's favour in 2008. Picture: Tracy Lee Stark
The Judicial Service Commission (JSC) will decide on Friday whether Western Cape Judge President John Hlophe will become the first judge in South African history to face a parliamentary impeachment process.
However, whatever the JSC decides will undoubtedly be the subject of further legal challenges.
Hlophe has already indicated that he “fundamentally disagrees” with the findings of the Judicial Conduct Tribunal (JCT), led by Judge Joop Labuschagne in April this year. The judge president was found guilty of gross misconduct for trying to sway two Constitutional Court justices to rule in favour of then ANC president Jacob Zuma.
Zuma had sought to challenge the legality of search warrants used by the then Scorpions unit to seize thousands of pages of evidence in his prosecution, largely on the basis that some of the documents, which were seized from his lawyer’s office, might breach attorney-client privilege.
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Hlophe, it is alleged, told Justice Bess Nkabinde, who was writing a note on privilege for her Constitutional Court colleagues, that the issue needed to be decided “properly”.Nkabinde also testified that Hlophe told her, among other things, that he had an “intelligence” list of people who had benefitted from the arms deal – for which Zuma is currently standing trial – and that many people would lose their jobs when Zuma became president. He also told her that there was no case against Zuma.
Hlophe remains adamant that he was not trying to influence either Nkabinde or Justice Chris Jafta, to whom he had said: “sesithembile kinina” (we pin our hopes on you).
He said he was merely seeking to engage in an innocent academic debate on the issue of privilege.
When the Labuschagne tribunal rejected those arguments, Hlophe’s lawyer Barnabas Xulu said that it had “misdirected itself on numerous procedural issues, rendering its findings unjustified.
“What we are concerned with here are issues of juridical probity and ethical standards, rather than rules of law,” he said.
While it is clear that Hlophe will challenge any JSC decision that goes against him, it is equally apparent that any decision that does not recommend that he faces an impeachment process will also be the subject of litigation.
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And that means further delays in the Hlophe saga, which has already been dragging for 13 years.
The Council for the Advancement of the South African Constitution (Casac) urged the JSC on Thursday to finalise the matter and decide whether to endorse the tribunal’s finding and refer the matter to the National Assembly for impeachment.
Casac pointed out that the 13-year-long history of the Hlophe matter had been defined by various court challenges from the JSC, Hlophe, Nkabinde and Jafta that “have caused unjustifiable and expensive delays in finalising the matter”.
“There have been no less than 14 reported judgments delivered in connection with the complaint since 2008. Even now, it is reported that Hlophe intends to take the JCT’s latest ruling on review, potentially causing further delays.”
Casac said the JCT’s finding of gross misconduct was a “grave one which may ultimately lead to Hlophe’s impeachment”.
“It is the most serious finding that can be made against a sitting judge, more so a judge president who leads a busy division, such as the Western Cape.”
Casac said the matter had “cast a long shadow, not just over the Constitutional Court, but the judiciary in general, and has exposed the JSC’s dilatory approach and ineffectiveness when it comes to dealing with complaints of judicial misconduct.”
Casac’s executive secretary, Lawson Naidoo, said: “It is deeply concerning that the JSC did not recommend to the president that Hlophe be suspended when the complaint was finally referred to the JCT.
“Now that there is a unanimous finding of gross misconduct, it is incumbent on the JSC to take this step if it is serious about protecting the integrity of the judiciary.”
Former NPA prosecutor and DA MP Glynnis Breytenbach previously called for the commission to urgently deal with the tribunal’s report.
Meanwhile, during a News24 webinar, Freedom Under Law’s retired judge Johann Kriegler said Hlophe should not just be impeached, but should be imprisoned.