Hlophe: shocking, yes, but also a cause for celebration

The full complaint lodged by all 13 judges of the Constitutional Court (11 full time and 2 acting Justices) contains shocking allegations against Judge President John Hlophe. But it also suggests that the leadership of the Constitutional Court have absolute integrity and that they will jealously guard the independence and integrity of the court no matter what a few thousand delegates may have decided in Polokwane (as the Deputy Chief Justice correctly said at his birthday party).

In particular, the allegations that the Judge President told Acting Justice Chris Jafta that he should decide the case in favour of Jacob Zuma because “Sesithembele kinina (you are our last hope)”, and that he allegedly told Justice Bess Nkabinde that “he had a mandate to act as he was doing,” that the “privilege issue” in the Zuma cases “had to be decided properly”, that he was aware that Justice Nkabinde was drafting a post-hearing note (an in-depth examination of the law) on privilege, and that “he was politically well connected” and was “connected to members of national intelligence”, is a matter of grave concern.

If this is indeed correct (and we must of course await the Judge President’s version of events before jumping to conclusions) Judge Hlophe would have clearly breached section 165(3) of the Constitution which states that “[n]o person or organ of state may interfere with the functioning of the courts”. If the Judicial Services Commission eventually accepts the version of events provided by the Constitutional Court, it is very difficult to see how they could not recommend that Judge President Hlophe should be impeached for gross misconduct.

In their reply to the counter complaint lodged by Judge Hlophe the Court also makes it clear that they had no option but to make this complaint public because they had to show that they were not going to be influenced by the alleged improper attempts to influence them and they thus acted in defense of the integrity and independence of the Constitutional Court and the administration of justice. One can quibble about the timing of the media statement, but I cannot agree with them more that they had no choice but to make the complaint public to ensure that parties before the court retains trust in the outcome of the case.

They also correctly point out that Judge Hlophe (and his defenders, I would add) “appears to underestimate the gravity of the complaint” and state that “an attempt to influence the judges of the highest court to determine a case in a particular manner is a threat to the institution of the judiciary, one of the pillars of our constitutional democracy”.

In typical South African fashion, judge Hlophe and his defenders are trying to avoid the substance of the complaint by focusing on the fact that the Constitutional Court went public with the complaint. This might be clever (if dirty) politics but it shows a breathtaking lack of understanding of how ethically challenged and despicable the alleged actions of Judge President Hlophe must be viewed by any decent, law abiding South African. It also shows a willingness to thrash the system on which our democracy is built (a la Zuma with the Scorpions) to gain a short term personal advantage.

Personally I think the counter claim lodged by Judge Hlophe is scandalous in its own right and should disqualify him to ever sit as a judicial officer in South Africa.

Whatever happens at the JSC, the leadership of the Constitutional Court have shown that they do understand how important the integrity and independence of the judiciary is and that allegations of this nature are so serious that they had no choice but to act. In this regard Justice Yvonne Mokgoro – who was approached by Justice Nkabinde and who then approached the leadership of the Court – must be specifically commended. In my book she is the hero of this story.

Sadly the actions of Justice Nkabinde and Jafta are not as unassailable. The fact that they first agreed to make statements to the JSC about the substance of the matter, then issued a statement declining to provide details of what had transpired between them and Hlophe is perplexing to say the least. One might well get the impression that they thought as long as they were not personally going to be influenced by the alleged approach by Hlophe, there was no need to take the matter further.

But as I have argued before, I cannot see that they had a choice in the matter. They have a constitutional duty to uphold the provisions of the Constitution – including section 165(3) – and no matter what the consequences they would have a duty to pursue the complaint and provide all relevant information to the JSC. I trust that they will do so and that Acting Judge Jafta will also divulge the confidential aspects of the discussion he had with his old friend Hlophe (and which he to date has refused to divulge). If he refuses to do so, it would amount to a shocking dereliction of his judicial duties.

In any event the ball is now in Judge President Hlophe’s court (no pun intended). He will have to try and deny that the statements attributed to him were ever made or (more likely) will try to argue that they were made in jest or that they were misconstrued. Problem is, he already told a radio journalist that he never approached any judges of the Constitutional Court on the Zuma matter so his options might be limited. Let us wait and see.

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