Quote of the week

[Venezuelan President Nicolás Maduro] possesses, however, few of his predecessor’s resources, lacking not just oil revenue but Chávez’s surplus of charisma, humour and political skill. Maduro, unable to end the crisis, has increasingly sided with the privileged classes against the masses; his security forces are regularly dispatched into barrios to repress militants under the guise of fighting crime. Having lost its majority in Congress, the government, fearing it can’t win at the polls the way Chávez did, cancelled gubernatorial elections that had been set for December last year (though they now appear to be on again). Maduro has convened an assembly to write a new constitution, supposedly with the objective of institutionalising the power of social movements, though it is unlikely to lessen the country’s polarisation.

Greg Grandin
London Review of Books
28 August 2009

Majority decision of the JSC in the Hlophe matter – 28 August 2009

Complaints of Judges of the Constitutional Court

against Judge President Hlophe and counter-complaint

by Judge President Hlophe against the Judges

of the Constitutional Court:

Decision and Reasons of the Judicial Service Commission

INTRODUCTION

  1. On 30 May 2008, the Judges of the Constitutional Court, including two Judges who had been acting as Judges of that Court during April and May 2008, (collectively referred to hereinafter as “Judges of the CC”), lodged with the Judicial Service Commission (“the Commission”) a complaint (“the complaint”) against Judge President Hlophe (“Hlophe JP”).  On 10 June 2008, Hlophe JP lodged with the Commission a counter-complaint (“the counter-complaint”) against the Judges of the Constitutional Court (“the Judges of the CC”).

  1. The Judges of the CC set out their complaint against Hlophe JP as follows: “A complaint that the Judge President of the Cape High Court, Judge John Hlophe, has approached some of the Judges of the Constitutional Court in an improper attempt to influence this Court’s pending judgment in one or more cases is hereby submitted by the judges of this Court to the Judicial Service Commission, as the constitutionally appointed body to deal with complaints of judicial misconduct.”

  1. On being requested to furnish evidential details of the complaint, the Judges of the CC submitted a statement dated 17 June 2008. In this statement, they said that the conduct on which the complaint was based was that in the course of separate conversations with Jafta JA and Nkabinde J, Hlophe JP sought improperly to persuade them to decide the Zuma/Thint cases in a manner favourable to Mr Zuma.

  1. Having regard to the role of the Commission in the present constitutional dispensation, two principal questions arise. The first is this: in respect of the complaint, does the evidence support the allegation that Hlophe JP improperly attempted to persuade Jafta JA and Nkabinde J, and thereby the entire Court, to find in favour of Mr Zuma in the Zuma/Thint cases, and is accordingly guilty of gross misconduct. The second question is this. In respect of the counter-complaint are the Judges of the CC guilty of gross misconduct as a result of publishing the complaint before and without affording Hlophe JP an opportunity to respond. It may be mentioned that in the counter-complaint, Hlophe JP also accuses the Chief Justice (“the CJ”) and the Deputy Chief Justice (“the DCJ”) of improper motive in relation to the manner in which the complaint was published.

  1. It must be stressed at the outset that as the law currently stands the Commission does not have the jurisdiction to hear a matter where a judge is guilty of conduct not amounting to gross misconduct. The Commission does not have the power to consider and pronounce upon the conduct of a judge where the evidence shows a judge to be guilty of misconduct only, as opposed to gross misconduct.  The provisions of the Judicial Service Commission Amendment Act[1], whose object, inter alia, is to allow for inquiries into and sanctions for alleged misconduct by judges which does not constitute gross misconduct leading to the removal of the judge from office, are yet to come into effect.

  1. At a meeting held on 15 August 2009 and after considering the matter and taking into account the limits of its powers, the Commission, by a majority, came to the following conclusions:  that the evidence in respect of the complaint does not justify a finding that Hlophe JP is guilty of gross misconduct and should accordingly be removed from office;  that the evidence in support of the counter-complaint does not support a finding that the Judges of the CC are guilty of gross misconduct and should accordingly be removed from office.  The two matters are treated as finalised.  The JSC hereby notifies the Judges of the CC and Hlophe JP of its decision and the reasons therefor.

BACKGROUND

  1. On 30 May 2008 the Judges of the CC lodged the complaint. Shortly thereafter they issued a media statement in almost identical words to the complaint.  In their complaint the Judges of the CC among other things: made certain averments about the seriousness of the conduct attributed to Hlophe JP; referred to the democratic values contained in section 1 of the Constitution, the independence of the judiciary and the prohibition in section 165 of the Constitution of interference with courts; alluded to the judicial oath and to the fact that an attempt to influence a court violates the Constitution and threatens the administration of justice; and affirmed that the Constitutional Court and other courts would not yield to or tolerate unconstitutional, illegal and inappropriate attempts to undermine their independence or impartiality.

  1. However, a few minutes before the statement was communicated to the media – and it transpires several other persons – the CJ telephoned Hlophe JP and told him that the Judges of the CC had decided to lodge a complaint against him. Hlophe JP’s request for particulars of the complaint was met by a request for his private facsimile number. A minute or so later a copy of the complaint was faxed to him. Soon thereafter Hlophe JP received calls from journalists who told him that the Judges of the CC had issued the media statement.

  1. Regarding the lodging and publication of the complaint, the Supreme Court of Appeal (“the SCA”) said: “It should be noted at this early stage that (a) [Hlophe JP] was not apprised of the allegations or their source; (b) he was not asked for his version or comments; (c) he received no effective prior notice of the intention to lodge the complaint; and (d) he was not told of the intention to issue a media statement. The public, too, was not given any detail and was left with nothing more than the knowledge that a complaint with serious implications had been lodged.”[2] However, it found that such publication was not unlawful.
  1. On 2 June 2008 the then Deputy Chairperson of the JSC, Judge Howie (“Howie P”), wrote a letter to the DCJ informing him that he was convening a meeting of the Commission on 6 June 2008 and requested that “evidential details of the complaint – perhaps statements by the Judges allegedly approached would be the most appropriate – be made available to the Commission before that date”.
  1. On 4 June 2008 the secretary to the JSC advised Hlophe JP’s then attorneys – Attorneys Nongogo Nuku Inc – that the Commission would be meeting on Friday 6 June 2008 in order to consider preliminary matters in relation to the complaint. The letter further requested Hlophe JP to furnish the Commission with a reply to the complaint before the envisaged meeting of 6 June 2008.
  1. On 5 June 2008 Attorneys Nongogo Nuku Inc responded to the Commission’s secretary’s letter of the previous day by stating that they were “astounded” by the fact that their client is expected to respond to the media statement issued by the Judges of the CC on Friday 30 May 2008.  The letter then proceeds to request thirteen (13) further particulars to the complaint, such as the identity of the judges allegedly approached by Hlophe JP; “the precise nature of the alleged complaint and how the alleged approach of some of the judges constituted an ‘improper attempt to influence the Court’s pending judgment’ in one or more cases”; how the judges who were not approached became complainants, etc.  The letter concludes by stating that their client is not in a position to reasonably respond to the media statement.

  1. On the same day, 5 June 2008, by letter, erroneously dated 05 May 2008, and addressed to the then Minister of Justice and Constitutional Development, Hlophe JP requested permission to go on special leave with immediate effect pending the investigation and finalisation of the complaint.
  1. On 6 June 2008 the Commission met as arranged, deliberated and thereafter issued a media statement in the following terms:  “Pursuant to receipt of the complaint lodged by Judges of the Constitutional Court against Judge President Hlophe the Commission’s meeting today was convened to consider written communication from the complainant judges conveying the facts underlying the complaint. The Judges concerned have been unable to meet this date. The Commission has been informed that they might require at the latest till 13 June 2008 to do so. They will be requested to provide the facts in statements. The statements will be furnished to Judge Hlophe for any response he may wish to lodge. He is to be called to respond within ten (10) calendar days of the receipt of the statements. The complainants will be given five (5) calendar days after that to answer any such response. Thereafter the Commission will meet on 5 July 2008 to consider whether the material thus obtained discloses a prima facie case of gross misconduct in terms of section 177(1)(a) of the Constitution. If the procedure referred to in that section is implemented, it will be open to the Commission to consider advising the President in terms of section 177(3) whether or not to suspend the judge pending the finalisation of such procedure.”

  1. On the same day Howie P addressed a letter to the Judges of the CC in the following terms:  “With regard to the factual details of the complaint, I have been requested by the Commission to ask that the details be provided in the form of a statement by each of the two judges concerned and to draw attention to the attached letter from attorneys acting for Judge President Hlophe, that seeks particularity which the Judges may be able to incorporate in their statements. Accepting that the Judges might require till 13 June 2008 to furnish the statements, the Commission has decided that the Judge President will have ten (10) calendar days after receipt to respond. His response, if any, will be referred to the complainant Judges for any reply, within five (5) calendar days, which they may wish to lodge. The Commission will then meet on 5 July to consider the material thus obtained.”

  1. In a joint statement dated 12 June 2008, Jafta JA and Nkabinde J responded to the Commission’s invitation to make a statement by stating the following:  “For the record, we wish to state that we have not lodged a complaint and do not intend to lodge one and, consequently, we are not ‘complainant Judges’. With regard to the request by the Judicial Service Commission for statements from us we wish to state that we are prepared to make only this joint statement, and no other. We place on record that, from the moment the matter about Judge President Hlophe’s visits was reported by O’Regan ADCJ to the Deputy Chief Justice Moseneke, we have on a number of occasions informed Chief Justice Langa and Deputy Chief Justice Moseneke that we were not intending to lodge a complaint and neither were we willing to make statements about the matter. We further record that on 28 May 2008, we attended a meeting called by Chief Justice Langa and Deputy Chief Justice Moseneke. We had occasion to discuss the issue that formed the subject of the complaint against Judge President Hlophe. We again made it clear to them that we were not intending to lay a complaint against Judge President Hlophe and neither did we intend making any statement about the matter. Reasons for such decisions were given to them. Save for what is stated in the preceding paragraph, we are not at liberty to disclose the content of our discussion with the Chief Justice and Deputy Chief Justice, but wish to state that should they wish to disclose such content to the Judicial Service Commission, we have no objection thereto.”

  1. On 12 June 2008 Howie P wrote to the CJ and the Judges of the CC in the following terms: “I have received a joint statement by Justices Nkabinde and Jafta in which they say they intend no complaint nor any statement. The Judges of the Court have gone on record as having lodged a complaint and the Commission has a written complaint by them in its possession. As you know, the Commission cannot deal with a complaint unless there is evidential material to support it. May I ask the other Commissioners please be advised: (a) Is a complaint to be pursued? (b) If so, what is the evidence to support it? (c) If not, the Commission, Judge President and the public need to be so informed.
  1. On 13 June 2008 the CJ responded to the letter of 12 June 2008 from Howie P and stated the following:

During the week, judges of the Court together with counsel had been working on preparing a joint statement providing details of the complaint for submission to the Judicial Service Commission. The preparation of that statement had been in consultation with Justices Nkabinde and Jafta and their counsel. A meeting of judges of the Court was planned this morning to settle the statement. The receipt of your letter of 12 June 2008 together with the copy of the joint statement made by Justices Nkabinde and Jafta in which they state that they are unwilling to make any other statement in connection with the complaint was therefore a complete surprise to judges of the Court. The draft statement we have prepared for submission to the Commission needs to take into account the joint statement. We have accordingly called an urgent meeting of judges of the Court on Monday 16 June and we shall forward a statement to the Commission responding to all the issues you raise in your letters of 2, 6 and 12 June as soon as possible.

  1. In the meantime, on 10 June 2008, Hlophe JP had filed his counter-complaint.  The essence of the counter-complaint was that the Judges of the CC had undermined the Constitution by making a public statement seeking to activate a procedure for his removal as a judge for alleged improper conduct without properly filing a complaint with the JSC in terms of section 177 of the Constitution.  In so doing, Hlophe JP alleged that the Judges of the CC violated his fundamental rights to dignity, privacy, equality, procedural fairness and access to court and that their conduct failed to respect, promote and fulfil the rights in the Bill of Rights.
  1. On 17 June 2008 the Judges of the CC filed statements in support of the complaint lodged on 30 May 2008.  The CJ gave an account of what was reported to him by Jafta JA, Nkabinde J, Mokgoro J, O’Regan J and the DCJ and what had transpired at meetings held at the Constitutional Court on May 28, 29, 30 and June 2, 6, 9, 11, 12, 13, 16 and 17.  The DCJ, O’Regan J, Mokgoro J, Nkabinde J and Jafta JA signed short statements confirming that they had read the statement prepared by the CJ and confirmed the contents thereof to be true and correct as concerned each one of them.
  1. The material allegations in support of the complaint and the summaries of the evidence of the Judges of the CC on 7 and 8 April 2009, as well as the evidence of the CJ, DCJ, Nkabinde J, Jafta JA and Hlophe JP are dealt with later.
  1. The Commission appointed a sub-committee to hear evidence and to report to it in terms of Rule 4(1) of the JSC Rules.  Such evidence was heard and is also summarised later.  The sub-committee reported and made a recommendation in the following terms:  “Having regard to the additional evidence pertaining to the complaint and the counter-complaint, the sub-committee recommends fresh deliberations to the complaint and the counter-complaint, to this end the sub-committee sends to the Commission the entire transcript of these proceedings and the transcript of the proceedings of 7 and 8 April 2009, to which repeated reference was made by the Judges during the interviews on 30 July 2009.”
  1. We now proceed to deal with the legal framework within which the complaint and the counter-complaint are considered.

LEGAL FRAMEWORK

  1. One of the hallmarks of a constitutional democracy is an independent judiciary.  The independence of the judiciary is a foundational value of the Constitution. The independence of the judiciary, says the Constitutional Court,[3] is foundational to and indispensable for the discharge of judicial function in a constitutional democracy based on the rule of law.[4]
  1. Judicial independence has also been defined to have as among its essential elements the complete liberty of individual judges to hear and decide the cases that come before them on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference direct or indirect from any quarter or for any reason.[5]
  1. There is clear learning that emphasises that judicial independence is not a private right or a principle for the benefit of judges as individuals, but instead is the cornerstone of impartiality and a constitutional right of every member of the public.[6] The independence of judges is also constitutionally protected in terms of various instruments.[7] Among the applicable measures are that judges enjoy security of tenure[8] and their salaries, allowances and benefits may not be reduced.[9]
  1. A judge may be removed from office only if, among other things, the Commission finds that the judge is guilty of gross misconduct.[10] The ground for judicial impeachment is set at a relatively high level. It is a standard that is internationally recognised.[11] The juridical reason for this is also to shore up the independence of the judiciary.  If the removal of judges from office was possible for mere misdemeanour or misconduct, the opportunity to compromise the independence of the judiciary would be rendered fertile.  Whereas the Guidelines for Judges[12] recognise that judges must ensure that their conduct is in the view of a reasonable observer above reproach and must avoid impropriety and appearance of impropriety in all their activities, it is accepted that the cause for the removal of a judge from office must be substantial.
  1. The Constitution does not define gross misconduct.  The word “gross” qualifying misconduct is not a term of art nor does it convey a consistent meaning in all circumstances.  It depends for its meaning on the context and the facts of a particular circumstance. However, the dictionary meaning of “flagrant”, “blatant”, “glaring”, “serious”, “major”, “significant” etc, as opposed to “minor”, give an indication of the gravity that the conduct has to exhibit before it can be referred to as “gross”. In other circumstances the word “gross” has been used to mean “wilful blindness”,[13] “with the addition of a vituperative epithet,”[14] “involving extreme departure from the standard of a reasonable person which must demonstrate complete obtuseness of mind or total failure to take care”.[15]
  1. The power to make findings of judicial misconduct is vested in the Commission.[16] It is accordingly the responsibility of the JSC to assess the evidence in support of the complaint and the counter-complaint in order to determine if any of the Judges is guilty of gross misconduct. In terms of the JSC Rules Governing Complaints and Enquiries, the Commission is required, on receipt of a complaint and responses thereto, to consider the relevant documentation and decide whether, prima facie, the conduct complained of would, if established, amount to such incapacity, incompetence or misconduct as may justify removal of the judge in terms of the relevant section of the Constitution.[17]
  1. In the light of the language used in the complaint it is necessary to examine and to contrast the words “improper influence” and “interference”.  The Constitution provides that no person or organ of state may “interfere” with the functioning of the courts.[18] The Constitutional Court, in describing judicial independence, approved the dictum that the concept connotes complete liberty of individual judges to hear and decide cases that come before them. No outsider – be it government, pressure group, individual or even another judge – should “interfere” in fact, or attempt to interfere with the way in which a judge conducts his or her case and makes his or her decision.[19] The meaning of the word “interfere” is also case and context specific.  The Concise Oxford Dictionary defines “interfere” to mean – meddle with, intervene, take part in, combine in different phases so as to cause partial or complete neutralisation.
  1. In contrast, the word “influence” is defined to mean: action of a person or thing on or upon another, perceptible only in its effects; moral power over person, etc.  The word “interfere” carries with it a meaning of conduct more serious than “influence”.
  1. It is insightful that the word “interfere” as opposed to “influence” is used both in the Constitution and in the Code of Judicial Conduct.  The premise, understandably, is that the function of lawyers and litigants is to influence judges to make findings in their client’s or their favour.  Whereas there may be debate about whether influencing a judge carries with it some turpitude, it is unquestionable that interfering or attempting to interfere with a judge in the conduct of his or her duties calls for censure, including, in an appropriate case, removal from office.
  1. The Commission is enjoined to determine whether the evidence in the complaint and the counter-complaint makes out a prima facie case to impel the formal hearing contemplated in Rule 5 of the JSC Rules. The concept “prima facie” also connotes different standards depending on the context within which that word appears. In inquisitorial proceedings much akin to the process of the Commission, the meaning “prima facie” is stated thus [20] “…in my opinion the test envisaged by the Inquest Act is whether the judicial officer holding the inquest is of the opinion that there is evidence available which may at a subsequent criminal trial be held to be credible and acceptable and which, if accepted, could prove that the death of the deceased was brought about by an act or omission which involves or amounts to the commission of a criminal offence on the part of some person or persons.” In this case, the inquiry is whether the allegations in the complaint and counter-complaint unanswered, point to gross judicial misconduct. In addition, however, we cannot ignore the responses that have been furnished by the respective Judges. The Rules require that they be taken into account.
  1. At this stage, the Commission has received evidence, both on the complaint and counter-complaint, and the inquiry is whether the formal hearing can reasonably point to gross misconduct on the part of Hlophe JP or the Judges of the CC.  We deal later with whether any purpose would be achieved by cross-examination.

  1. In assessing whether the complaints reveal that any of the Judges against whom complaints were laid were guilty of gross misconduct one important consideration was taken into account.  None of the Judges were subjected to cross-examination. We accept that when evidence was given, a number of questions to clarify issues were asked. But it cannot be said that any of the questioning was of the confrontational type that would normally be encountered under cross-examination.  The significance of this is that it is highly unlikely that the validity of the complaints made by the respective parties would be strengthened.  If anything, cross-examination is likely to lead to concessions. We accept that there are sharp disputes of fact between the different versions. However, in our view those disputes are not central or material to the validity of the respective complaints. It has been suggested in submissions by Marcus SC and his junior that cross-examination will resolve issues on which there are disputes of fact. It is our view, however, that the issue we have been called upon to determine in respect of the complaint and the counter-complaint is whether there is sufficient evidence to establish that the acts complained of amount to gross misconduct on the part of the Judges concerned.  In determining what course we should follow we focused on that. For the reasons set out hereunder, we concluded that the evidence available does not establish nor tend to establish that any of the Judges whose conduct is impugned is guilty of gross misconduct. We also concluded that it is highly unlikely that referring the matter to a full hearing would lead to a different conclusion.


SUMMARY OF STATEMENT OF THE JUDGES OF THE CC

  1. The statement of the Judges of the CC records the following: what Nkabinde had reported to the CJ and the DCJ; what she had reported to Mokgoro J; and what Jafta J reported to the CJ and the DCJ. These reports are summarised hereunder.

Nkabinde J’s report to Langa CJ and Moseneke DCJ

  1. Nkabinde made the following report to the CJ and the DCJ: she said that Hlophe JP has visited her chambers on 25 April 2008.  He commenced by enquiring about her family roots.  He then turned to the Zuma/Thint cases. He said that the issue of privilege was important to the prosecution case; if the point raised by Mr Zuma’s counsel were to be sustained there would be no case against Mr Zuma.  She was puzzled as to why Hlophe JP selected the issue of privilege for discussion; and was concerned about how he had obtained information about the Zuma/Thint cases.
  1. She continued as follows: Hlophe JP had also told her the following: he had a mandate to act as he was doing; he was politically well connected; and was connected to members of national intelligence. The implication, she thought, was that he was well informed about what was happening at the Constitutional Court. Hlophe JP then added the following: there was no real case against Mr Zuma; it was therefore important to hold in his favour. She asked him what “besigheid” he had to discuss the case. He responded as follows: Mr Zuma was being persecuted as he (Hlophe JP) was being persecuted. Hlophe JP had made other “hogwash” claims. She had made the following clear to Hlophe JP: he was not a member of the Court to talk about the case; even if he were a member he would still not be entitled to discuss the case unless he had sat in on the case.
  1. She had told Hlophe JP that he should not interfere with the workings of the Court. She also said that Hlophe JP’s approach did not influence her. After the visit, she had for some time wrestled with what she should do. She decided to speak to Judge Mokgoro for advice. She did so in early May after term commenced.

Nkabinde J’s report to Mokgoro J

  1. Nkabinde J had in confidence told Mokgoro J the following: she had been approached in her chambers by Hlophe JP towards the end of April. After some preliminary inquiries about her family roots, Hlophe JP told her “he had a mandate”. He then said that the privilege issue in the Zuma/Thint cases had to be decided “properly”.[21] Hlophe JP then told her that he had connections with national intelligence and that some people were going to lose their positions after the elections. He also said he had outgrown the Cape High Court and was going to make himself available for appointment to the Constitutional Court and that Judge Jafta should do the same.
  1. Mokgoro J advised Nkabinde J to report the matter to the CJ or the DCJ. Mokgoro J, without reverting to Nkabinde J then told O’Regan J what had happened and she in turn told Moseneke DCJ. Thereafter, Nkabinde J informed the CJ of what had happened. The CJ held two meetings with her. At the two meetings and in a subsequent telephone call to him, she expressed her unwillingness to furnish a written statement regarding the matter.

Jafta JA’s report to Langa CJ and Moseneke DCJ

  1. Before he began his narration to the CJ and the DCJ, Jafta JA asked whether the meeting was an official or unofficial one. The DCJ said it may have official and unofficial consequences and that he and the CJ were acting in their capacities as such. In his report, Jafta JA said that he had known Hlophe JP for many years and they were friends and colleagues and he did not want to breach a confidence but would confirm in general terms what Nkabinde J had said.
  1. He said that in March 2008, after the Zuma/Thint cases had been heard, Hlophe JP came to his chambers and talked to him. Hlophe JP said some things in confidence and Jafta JA refused to relate those.  What Jafta J related was that Hlophe JP said the case against Mr Zuma should be looked at properly or words to similar effect and added words to the effect that you are our last hope (“sesithembele kinina”).
  1. In response to a question, Jafta JA said that he gained the impression that Hlophe JP wished for a particular result in the matter. This is because Hlophe JP mentioned that Mr Zuma was being persecuted just as he was.  He said that particularly after he heard of the approach to Nkabinde J he considered the approach to be serious and that it was part of an attempt by Hlophe JP aimed at interfering with the independent exercise of judicial discretion by the Judges of the CC.  He firmly told Hlophe JP that the Zuma/Thint cases would be decided properly on the facts and the application of the law. He also said that when he heard that Hlophe JP planned to visit Nkabinde J he warned her that Hlophe JP might discuss the Zuma/Thint cases with her.
  1. Jafta JA said he had not planned to lodge a formal complaint about Hlophe JP’s conduct even though he considered that it had been an improper attempt to influence him. He was of the view that he had decisively dealt with the matter by rejecting the approach of Hlophe JP.
  1. Nkabinde J and Jafta JA were clear in their view that the approach by Hlophe JP was improper. But they made it clear that after they had dealt with the matter by rejecting the approach of Hlophe JP they did not consider it necessary to lodge a complaint or make a statement.
  1. Five of the Judges of the CC gave evidence when the Commission sat on 7 and 8 April 2009. Hlophe JP’s counsel had sought an adjournment on the basis that Hlophe JP, who was not present, was sick. The adjournment was not granted. His counsel did not participate in the proceedings thereafter. Consequently, the Judges of the CC were questioned only by the members of the Commission and counsel who appeared for the Judges of the CC and for Nkabinde J and Jafta JA. In the sections hereunder, the evidence on the aspects relevant to these proceedings given by the Judges in April is summarised.


SUMMARY OF EVIDENCE OF JAFTA JA ON 7 and 8 APRIL 2009

  1. In answer to the chairperson Jafta JA said he acted in the Constitutional Court from January to the end of May 2008. He confirmed signing a statement on 17 June 2008 confirming the correctness of the contents of the statement of the CJ of the same date. He also confirmed signing a statement confirming the statement of 4 July 2008 made by the CJ which was in response to the complaint by Hlophe JP against the Judges of the CC.
  1. In answer to questions posed by Mr Seligson, he said that the Constitutional Court sat on the Zuma/Thint cases around 10 and 11 March 2008. He and Nkabinde J were members of the Court which heard the matters. At the time that Hlophe JP visited him towards the end of March judgment in the cases was still under consideration. The meeting had been pre-arranged. Hlophe JP telephoned him the day before telling him that he would be at the University of the Witwatersrand the following day. Hlophe JP asked if they could meet as he wanted to enquire about Jafta JA’s experiences in the Constitutional Court as he was aspiring to make himself available for the Court if a vacancy arose.
  1. He said Hlophe JP arrived at about 10h00. They first talked about their past at the University of the Transkei (Unitra) where they had lectured together and about various other things, including their families.  Hlophe JP asked if judgment had been handed down in the Zuma matters. Jafta JA said the matter was complex and they were still working on it. Hlophe JP then said the matter must be looked at properly because he believes that Mr Zuma was persecuted, just like he was and the Supreme Court of Appeal got it wrong in its judgment.  He said Hlophe JP concluded that part of the conversation by saying “sesithembele kinina” which one could loosely translate to mean, you are our last hope. Jafta JA responded that the matter is going to be decided on its facts and the application of the law to those facts.  Hlophe JP left to meet with Ngcobo J in the latter’s chambers.
  1. Asked about his impression and conclusion, Jafta JA said that at the time he was taken by surprise because in the Appeal Courts in which he had sat – the Labour Appeal Court, the Supreme Court of Appeal and the Constitutional Court – Judges do not discuss matters before judgment is handed down with members of the Court who were not on the panel. At the time he was unsure whether Hlophe JP was attempting to seek a particular outcome. But he felt uncomfortable and feared that if the discussion went on, even if it were innocent, it might end up influencing him one way or the other and that is why he cut the discussion short. Hlophe JP did not seem to mind that and changed the subject.
  1. He also said that by using the expression “sesithembele kinina”, he thought that Hlophe JP implied that the Constitutional Court would correct what the Supreme Court of Appeal had got wrong. He said he did not do anything about the occurrence immediately because he was not sure whether it amounted to improper conduct, except that it was not permissible in the Appeal Courts in which he had sat for a person who was not on the panel to discuss a matter with a member of the panel. He was not sure that Hlophe JP was aware of that rule. He had never experienced something like this before.
  1. He said he and Nkabinde J used to have lunch together. One day she told him that she had received a call from Hlophe JP. Among other things, Hlophe JP had said he wanted to discuss with her the issue of privilege. Jafta JA then told her there is a possibility that Hlophe JP might discuss the Zuma/Thint matters with her because he had done so earlier with him.
  1. In the meantime he went back to Bloemfontein because the Court was in recess. He got a call from Nkabinde J to say she had met with Hlophe JP. She briefly told him what occurred between them which sort of confirmed that he had discussed the Zuma cases with her.
  1. He described how it came about that the matter came to the attention of the other Judges of the CC.  He said that Nkabinde J was more concerned about how possibly, because she had been allocated tow rite a post hearing note on privilege Hlophe JP has known [that].  Nkabinde J thought that there might have leaks from the system.  I think another judge had complained that her e-mail message had disappeared from her computer and that was a concern.  Nkabinde J had spoken to Mokgoro J, who had spoken to O’Regan J who had inturn spoken to the DCJ.  But Nkabinde J had herself then reported the matter to the CJ.
  1. He confirmed that he and Nkabinde J were parties to the collective complaint from the Judges of the CC. He said however that when the matter was raised with him at the meeting of 28 May 2008 with the DCJ and the CJ, he indicated to them his reluctance to complain because he understood that it was expected that he would complain as an individual, which he was reluctant to do. He believed that he effectively dealt with the matter by rebuffing the attempt when he said the matter was going to be decided on the facts of the case and the application of the law. He got the impression that despite his personal reluctance to pursue the matter, the CJ and the DCJ deemed it necessary to report the matter to the Commission. This is because they thought that it seemed to touch upon the integrity of the Court as an institution.
  1. He believed that more thought had to be given to the process to be followed in taking the matter further. If Hlophe JP disputed what he and Nkabinde J said, it would require both of them to testify. However, it was undesirable for sitting Judges to be involved in factual enquiries which might involve credibility findings. He was still not willing to make a statement.
  1. He was a willing participant in the collective complaint. The process that would then follow was the complaint would be laid by the CJ and the DCJ and he was willing to confirm the conversation between himself and Hlophe JP. When the Commission requested statements from the two Judges concerned, he believed this implied that the two Judges were the complainants and wished to make it clear that the complaint was a collective complaint by the Court.
  1. He confirmed making the joint statement with Nkabinde J on 12 June 2008 and confirmed its contents.
  1. He denied a suggestion by Hlophe JP that he was reluctant to be a complainant, was influenced to join in the collective complaint and was an unwilling participant therein. He said he and Nkabinde J were willing to participate to protect the integrity of the Constitutional Court as an institution and were not pressurised into joining in the collective complaint.
  1. In confirming the collective statement he said the statement was compiled following a meeting of the Judges of the CC on 16 June 2008. He looked at the statement and was prepared to confirm the events that took place and signed the confirmatory statements to confirm the correctness of those events.
  1. He and Nkabinde J employed their own attorney and counsel after they were given the letter of the Commission of 6 June 2008. The letter implied that they were complainant Judges and were required to submit a statement or statements. However, at that stage there was no draft statement by the CJ. They thought it prudent to have counsel to advise them on whether their earlier stance was correct or not and counsel were then appointed. He denied a suggestion by Hlophe JP that the fact that they were separately represented confirmed that they were reluctant joint complainants.
  1. He said they continued to retain separate counsel principally because they anticipated ultimately testifying and were still uncomfortable with testifying.  It was not, at least since 1994, that Judges would be called to testify against a serving Judge and this discomfited him.
  1. Jafta JA confirmed that he had told the CJ and the DCJ that he gained the impression that Hlophe JP wished for a particular result in the matter because he mentioned that Mr Zuma was being persecuted just as he was. He also confirmed he considered the approach to be serious after hearing of the approach to Nkabinde J.
  1. Under questioning by Mr von Klemperer, Jafta JA denied that there was a wider discussion on the question of privilege than he set out. In particular, he denied the following: that Hlophe JP said he felt strongly about privilege and fair trial rights; that his response was that he felt the same about the issue of privilege and fair trial rights; and that Hlophe JP had said that he was not sure that everyone, particularly his white colleagues, shared the same thinking.
  1. He was asked whether as a senior Judge, his reaction to improper conduct by a fellow Judge simply terminating the discussion, was an adequate response. He responded that the Rules of Ethics of Judges suggest that if a Judge suspects that another colleague has committed an act of misconduct there are two options open to that Judge: either he takes the matter up with the Judge concerned or he or she reports the matter to the Head of the Court concerned. He believed he had dealt effectively and decisively with the issue by rebuffing the approach by Hlophe JP.  In any case, he formed the opinion that Hlophe had been attempting to improperly influence him after he had heard of the approach to Nkabinde J.  He conceded that he did not call Hlophe JP to resolve the matter and agreed that in hindsight, his reaction was inadequate.
  1. Regarding his reluctance to give a statement because it was not appropriate, he was referred to the CJ’s statement which said that if Hlophe JP resisted the complaint, the Judges who were approached would have to give oral evidence to the Commission in due course.  He accepted that view and pointed out that they did not object to the matter being taken to conference provided that he and Nkabinde J would not be expected to recount to the other Judges what had happened. He thought that the CJ and the DCJ knew their stance on leading of evidence.
  1. Asked what his attitude to giving evidence to the Commission at that stage was, he replied that he was still reluctant and conceded that in hindsight this was an inadequate reaction. He was pressed on why in their letter of 12 June 2008 he stated they were not “complainant Judges” and he replied they were not complainant Judges in their individual capacities, but accepted that each of the Judges of the CC were complainant Judges.
  1. He was asked about making only the joint statement despite a week later signing a confirmatory statement to which he conceded that it appeared misleading and that Hlophe JP had made a great deal of it.
  1. In answer to questions by Mr Ngubane, Jafta JA conceded that a better translation of “sesithembele kinina” is “we pin our hopes on you”, rather than “you are our last hope”. He conceded that when reporting the matter to the CJ it was possible he might have omitted some of the things Hlophe JP had said to him and that his recollection of the exact conversation might be flawed. It was pointed out to him that he said Hlophe JP had stated that the SCA got it wrong but this was not in the CJ’s statement. He answered that he thought he mentioned it in the meeting with the CJ but did not know why it was not included in his statement.
  1. In answer to Prof Neethling, he said Hlophe JP never conveyed to him that he wished a positive finding on the Zuma/Thint matters, but merely expressed a view that the issue of privilege receives satisfactory attention from the Court. Jafta JA said they did not discuss the issue of privilege and thought that when Hlophe JP said Mr Zuma was being persecuted just like him, that the SCA got it wrong, he was wishing for a decision which would favour Mr Zuma.
  1. He agreed with the Chairperson that at the stage that he rebuffed Hlophe JP who was not a party to the hearing, he should not have discussed the matter further, but he did not [then] think Hlophe JP was trying to influence him. He started holding the view that Hlophe JP had tried to influence him only after receiving the report from Nkabinde J about her conversation with Hlophe JP.
  1. He was again questioned by Mr Seligson who pointed out that Hlophe JP said that Jafta JA had at no stage showed signs of being uncomfortable with their discussions and waited for almost a month before speaking to or warning Nkabinde J about the alleged attempt to improperly influence him. Jafta JA agreed that at the time he considered it to be possibly an innocent discussion and did not form the opinion that Hlophe JP was attempting to influence him and had there been no later approach to Nkabinde J, he would not have formed that opinion.
  1. Jafta JA however agreed he was uncomfortable when Hlophe JP discussed the case with him and cut him short. He denied the allegation by Hlophe JP that he had not warned Nkabinde J as his evidence about Hlophe JP’s alleged attempts to influence him was a fabrication.
  1. Asked to comment on Hlophe JP’s contention that it was appropriate for him to say that Mr Zuma’s cases have to be looked at properly because the CC is anyone’s last hope in any litigation, that that comment can [accordingly] never be inappropriate, Jafta JA insisted that the context of what happened, coupled with what happened during the visit to Nkabinde J, reinforced an opinion that it was an improper attempt.
  1. Jafta JA rejected the allegation by Hlophe JP that there was an attempt to persuade him to act contrary to his conscience by being party to the collective complaint.
  1. In response to questions by Mr Bizos, Jafta JA said the assertion by Hlophe JP that “Mr Zuma has been persecuted“, meant that unfairness had been visited upon Mr Zuma. He agreed that that statement, together with the further assertions – that Mr Zuma was innocent and wrongly prosecuted; the Supreme Court of Appeal got it wrong; he was the last hope, and Hlophe JP (and others) were relying on him – suggested that this was not an innocent conversation. Asked what he thought was expected, he said he thought Hlophe JP expected the Constitutional Court to give a judgment that favoured Mr Zuma correcting the wrong committed by the Supreme Court of Appeal in its judgment and stop the persecution.
  1. Jafta JA stated he was never approached by any other Judge with this sort of request and had no doubt that Hlophe JP intended to influence his mind.
  1. He was questioned by Ms Moroka who referred to Hlophe JP’s statement that a Judge should not be over-sensitive and shy away from hearing a colleague’s robust view, and still maintain the independence of thought and intellect. When Jafta JA was asked if it was not just a robust exchange of views, as opposed to an attempt to influence him, he said in his experience such an exchange had never happened, certainly not in the Appeal Courts and this was because even if the discussion was an innocent one, it might somehow influence one’s thinking when preparing the judgment and accordingly, was not a proper discussion to have. He rejected the suggestion that this was simply an academic exercise between colleagues as it dealt with a matter where judgment was pending. He distinguished this from other cases where Judges discuss matters, not necessarily with the intention to influence each other, stating that Hlophe JP was not involved in the particular cases.
  1. When he was questioned by Mr Marcus, Jafta JA rejected the allegation by Hlophe JP that all the Judges of the CC are motivated by an inexplicable desire to get rid of him, to get him impeached and to suggest that he is not fit to be a judge any more adding, that he was friends with Hlophe JP.  He also rejected the further allegation that the Judges of the CC are motivated by undesirable political considerations.  He said that none of the other Judges of the CC brought any undue or inappropriate pressure to bear on him to act contrary to his conscience.
  1. Questioned by Mr Madlanga, Jafta JA rejected the allegation that his complaint was a fabrication, stating that once the matter came to the attention of the DCJ and the CJ, he was not reluctant to divulge what had happened and did so in the presence of the senior judges at the meeting of 28 May 2008.
  1. Ngoepe JP pointed out that at the meeting of the Judges of the CC, Jafta JA and Nkabinde J did not recount the details of their respective meetings; this was done by the CJ and DCJ. Jafta JA responded that the CJ and the DCJ wanted to take the matter to conference and they merely agreed provided the information already given to the CJ and the DCJ would not be recounted [by them].  In fact they did not speak at the meeting.

SUMMARY OF EVIDENCE OF NKABINDE J ON 8 APRIL 2009

  1. In answer to questions from the Chairperson, Nkabinde J confirmed the visit by Hlophe JP. She confirmed the contents of the statements by the CJ insofar as they relate to her.
  1. In response to questions by Mr Seligson, she said that in the latter part of April 2008 she was on duty and the practice during recess was that two Judges keep a duty watch. On 23 April 2008 she received a call from Hlophe JP to make an appointment to come and see her in her chambers on 25 April 2008 and informing her that he has a mandate.  Nkabinde J was expressly asked whether this was said on the telephone or when Hlophe JP visited her. She answered that he said it on the telephone. She also said that on the telephone he said, in isiZulu, something to the effect that they would talk about the issue of privilege.  Asked if she agreed to the visit, she said they agreed that she would be in chambers on the 25 April 2008 because Hlophe JP said he would be coming to Johannesburg on the 25 April 2008.
  1. She said she knew Hlophe JP as a colleague, as a Judge, but did not know him prior to that. She said before he arrived at her chambers on 25 April 2008, he called and her personal assistant put him through to her.
  1. Regarding what transpired at the meeting, she said the following:  they met at about 11h30, exchanged greetings; talked about other things, such as their families and their respective marriages. Hlophe JP took off his jacket and told her that one of the reasons he was there was that a concern was raised that people who were appointed to the Constitutional Court ‘should understand our history”.  She asked who these people are and he said he was connected to some Ministers whom he advised from time to time. She went on: “We left it at that and he then started talking about Mr Zuma’s case.”  She states that Hlophe JP went on to say that the Zuma case “is an important case. The issue of privilege is also important. It must be decided properly because the prosecution case rested on that aspect of the case.”
  1. Asked what her reaction was, she said that she had spoken to Jafta JA on 24 April 2008. When he was at the Constitutional Court they shared lunch at the Court. She told him that Hlophe JP made an appointment to see her. Jafta JA told her to be careful because he might want to come and discuss Mr Zuma’s case with her.  So when Hlophe JP talked about the case, in particular about the aspect of privilege, she remembered what Jafta JA had said.  She “snapped” and told him: “my brother, you know that you cannot talk about this case. You have not been involved in the case, you have not sat on it and you are not a member of the Court to come and talk about the case.” Hlophe JP responded that he did not mean to interfere with her work.  “He went on to explain that the point is that there is no case against Mr Zuma.”  He then said: “Mr Zuma had been persecuted, just as he [Hlophe JP] was persecuted. He said there were people – there was a list containing names of people who were also implicated in the arms deal. He had obtained the list from National Intelligence. He also said something to the effect that: some of the people who appeared on the list were going to lose their jobs when Mr Zuma becomes President.
  1. She said Hlophe JP mentioned other things that she considered to be “nonsensical”, which she did not disclose to the CJ. As he was talking, his cell phone rang. It was the CJ and that was the end of their discussion.
  1. Asked what her reaction was when Hlophe JP raised the question of privilege, she asked: “are you referring to the time when he phoned me or the time when he came to my office on the 25th?” She was asked what her reaction was when he had telephoned her. She said when he telephoned her he mentioned the issue of privilege. Asked if she indicated that she was prepared to discuss it with him, she said: “I just didn’t attach anything to that. I didn’t know what he was talking about.”  [At that stage Jafta JA had not yet warned her.)  However, she continued, it became clearer when Jafta JA said he might want to talk about Mr Zuma’s case. But she thought she could not anticipate what Hlophe JP wanted to talk to her about.
  1. Asked what her reaction was when he mentioned privilege during the meeting in her chambers, she repeated her earlier answer: “My brother, you know you are not entitled to talk about the case in which you have not sat and you are not even a member of this Court to talk about this case. And he responded, saying, my sister, I don’t mean to interfere with your work.”
  1. She said her concern about his raising the issue of privilege arose from the fact that judgment was pending in the cases just heard by the Constitutional Court and that she had been allocated to write on the issue of client and attorney privilege. She had written on the issue and had circulated her note to colleagues on 1 April 2008 and the matter was due to be discussed when they reconvened in May 2008.  Some of the other judges had already expressed their views on the note. She added that it was a concern to her that Hlophe JP while not a member of the Constitutional Court and had not sat in the matter “came and expressed strong views on a matter and he even indicated how the matter should be decided.  I think it is improper for a Judge to interfere in that manner on a matter that he had not sat on.  He was clearly influencing the way in which we were going to decide the matter.”
  1. Another matter of concern to her was the number of issues in the case, but she wondered how he came specifically to talk to her about the very aspect of the case on which she had written.
  1. Asked if she had talked to anyone about the visit she said she thought that during the two weeks they were on recess duty the CJ had been engaged elsewhere. She was satisfied that she had “rebuffed” Hlophe JP, but concerned there was a possibility of confidential information leaking out of the Court and did not understand how Hlophe JP could know that she was writing about that aspect of the case.
  1. When the Court reconvened, she talked to Mokgoro J about the matter.  A week before the incident, Mokgoro J had sent a voicemail saying she was concerned that she was losing information in her computer and inquired if Nkabinde J was experiencing the same problem. This was the background to her wondering how Hlophe JP came to know that she had written on the matter. She wondered if someone could have disclosed to him that she was writing about the matter and whether the work of the judges was possibly “under surveillance, I was just wondering about all these things.” Although she had no answers, these were things that crossed her mind.
  1. When the term commenced in the first week of May 2008, she sought advice from Mokgoro J. She informed Mokgoro J of what had happened and her concern. Mokgoro J shared her views and also wondered how Hlophe JP could have known that she had written about the matter.
  1. However Mokgoro J went further. She told Nkabinde J that the matter could not end there even though she had rebuffed Hlophe JP.  She advised Nkabinde J to approach either the CJ or the DCJ. She was “correctly” of the view that Hlophe JP’s behaviour had a potential of influencing the decision making of the Court and that it was clearly undermining “the institutional integrity”. Mokgoro J returned in the afternoon, enquiring whether she had spoken to either the CJ or the DCJ. She told her she had not done so. She returned the following morning, quite concerned. Nkabinde J told her that she was giving the matter some thought because it was not an easy matter for her.
  1. She said that at that stage she was thinking more about how to handle the matter and what “the right step” to take was. Because she was quite busy, she thought she must not rush to make a decision. It later emerged that Mokgoro J had spoken to O’Regan J, who was then the Acting DCJ. She became aware of this later when the DCJ telephoned her saying that O’Regan J had called him at home, making an appointment to see him on an urgent matter concerning Nkabinde J and Jafta JA. It was then that she realised that the matter could have been discussed elsewhere.
  1. She then met the CJ. She was still thinking about the matter. However, she thought that instead of the CJ hearing from someone else, it was an appropriate thing for her to talk to him.  However, before she could go to him, he called her to discuss an unrelated matter. After they had discussed that matter, she reported to him what had happened.
  1. Nkabinde J said she was a party to the complaint made to the JSC by the Judges of the CC. Asked how it had come about then that she and Jafta J had issued the joint statement of 12 June she said the following; the Judges of the CC were in the process of preparing a joint statement of the events, involving Hlophe JP. The CJ had left the country when they had received the letter from the JSC. O’Regan J understood that the letter required Nkabinde J and Jafta JA, as the two Judges concerned, to make statements. However, Nkabinde J said that they had made it clear that because they had reported the matter to the CJ, “there was no need for them to act individually to make statements. Whatever statement that was to come, must be a statement by the Judges of the Constitutional Court.”  She understood the JSC’s letter to mean that they were the individual complainant Judges. They wished to emphasise that they were not individual complainant Judges, that they were acting as a collective with the Judges of the CC. Their statement was intended to clarify the point. In effect, at the time they were prepared to be part of a collective complaint which they would sign but were not prepared to make individual statements as individual complainants.
  1. Asked why they were not prepared to be individual complainants but only part of a joint complaint, she said it was a very difficult and complex matter. It is something that had never happened in her experience as a Judge. When they were with the CJ and the DCJ she told them that she thought that Hlophe JP was going to deny the allegations that would necessitate their having to testify because there would be disputes of fact and issues of credibility would arise. She said the situation in which they would be testifying against one another, in particular Hlophe JP, would be very difficult for her as a Judge. It was undesirable for them to find themselves in that situation. However, she accepted that she would have to testify. That is why at the meeting of 29 May 2008 it was agreed that eventually the Judges who were approached would have to testify, but not necessarily make statements.
  1. Asked why she had been prepared to be part of the collective complaint which might necessitate oral evidence on her part, but had not been prepared to be an individual complainant, she said:  “In retrospect, I think one could have done that. You know, this thing happened at the time when one was busy doing all sorts of things.  My mind was not clear at the time as to really what is the right thing to do, and given that complexity, the difficulty that I’ve just mentioned, I didn’t see myself, see it very clearly. Now the period has passed and I think and in retrospect one could have done that.
  1. She said that she had had no problem about being part of the collective complaint. She said it was false to suggest that they were influenced or forced or manipulated in any way to make a statement or to participate in what the Judges of the CC had decided to do. She said that she volunteered to speak to the CJ without anybody prompting her to do so.
  1. She was then asked to respond to Hlophe JP’s version of what had transpired. She denied that he had called her to inform her that he would be at the Court and wanted to visit her for a few minutes before his meeting, saying it was just a courtesy call and nothing more. She said that he had phoned, making an appointment to talk about what he called “a mandate” and mentioned that he wanted to talk about privilege.
  1. She agreed that they had met at a function the day before and that when he went to her chambers at about noon, she welcomed him and they exchanged pleasantries about their families and her surname and so on.
  1. She denied that she discussed her experience at the Constitutional Court with him. She further denied that Hlophe JP remarked that the Zuma/Thint cases were probably one of the most demanding that the Court had dealt with given his position in the ANC, and that he was a likely contender for the Presidency of the country. She responded as follows: “Mr Hlophe didn’t say all these things. We exchanged greetings and talked generally about things like how is it at the Court.” She said they were fine, but there’s a lot work. They talked about family. “Then he told me about this concern about these people that he talked about, and thereafter he talked about the case.”
  1. She said that he had not mentioned a “mandate” at all at the meeting. That had been mentioned in the telephone call. As to what the mandate was for, she said. “Well, he said he had a mandate, he was to come to tell me what the mandate was, but when he came to my office he didn’t say anything about this mandate. Of course, one would probably draw inferences, but I don’t think that’s my job to do that.”
  1. Commenting on Hlophe JP’s version that he had asked her whether judgment was due, and she had told him there was still a lot of work to be done and that she was busy doing a note on the issue of privileged communication between attorney and client, she said: “[T]hat’s false, totally devoid of credence.” She denied that she had raised the issue of privilege and Hlophe JP had raised it. She also said that she had already written the note on privilege and was not busy with it at the time.
  1. Responding to a claim by Hlophe JP that there could be nothing sinister about having a casual discussion on the legal principle of privilege and a denial by him that he had chosen to discuss the issue of privilege because he had “an inappropriate inside knowledge of workings of the Court“, she rejected the suggestion that he had had “a robust discussion on legal principles with” her.  What he had done was “He came to discuss a case he had not sat on, on a principle that he expressed very strong views on . . . He expressed strong views about the matter and that was improper.
  1. Asked why in her view Hlophe JP had raised the issue of privilege, she said “he said that it was an important aspect of the prosecution case.  He said there’s no case against Mr Zuma. I suppose well, he meant to say the decision that the Court had to make should be favourable to Mr Zuma.”

  1. She denied she had told him that legal privilege was an important legal issue in the case and that he had expressed concern that the majority in the Supreme Court of Appeal had not attached much weight to the issue of privilege. Responding to the statement by Hlophe JP that the conversation had been mutual and that she had at no stage indicated any discomfort about the many issues that they had discussed, including the issue of privilege, she said “[W]hen Judge Hlophe talked about the case of Mr Zuma, talked about the issue of privilege, saying that the prosecution case rested on it, and remembering what Judge Jafta had said, I immediately said to him, you are not entitled to do what you’re doing. I immediately said that to him, and he said, well my sister, I don’t mean to interfere with your work. The converse was true, he was doing exactly that.”
  1. Responding to his claim that it was simply a casual conversation, she said: “Judge Hlophe crossed the line of legitimacy. He was not supposed to do what he was doing.”

  1. She was asked to respond to Hlophe JP’s statement that he did use the word mandate in that context.  She denied that she asked him what he was doing in the Constitutional Court or that he responded that he was given a mandate by the CJ to chair the LOC for the Commonwealth Conference on Judges and Magistrates to be held in Cape Town. She insisted that Hlophe JP said he had connections with the National Intelligence and that some people would lose their jobs after the elections. She maintained that Hlophe JP’s views could not have influenced her.
  1. She responded by denying that she had asked him what he was doing at the Court, saying that he had made an appointment to come and see her to talk about the mandate and the issue of privilege. She did not know exactly what he was coming to say to her. She waited for him to come. She denied that he had told her that the mandate that he was there for concerned a conference. He had not said anything about that. She insisted that he had mentioned his connections with National Intelligence in the context of explaining why Mr Zuma was not the only one who had been implicated in the arms deal. He said he had obtained the list from the National Intelligence.
  1. Asked why, after Jafta J had warned her that Hlophe JP might want to discuss the Zuma/Thint case with her, she still went through with the meeting she replied “a colleague had made an appointment with me.  I agreed.  It would have been discourteous for me to simply say to him, I don’t want to see you anymore because I heard that you could be coming here to talk to me about the case of Mr Zuma. I did not know, I could not anticipate what he was coming to talk to me about.”
  1. She further denied the allegation by Hlophe JP that the suggestion that Jafta JA had warned Nkabinde J about his alleged attempts at influencing him was clearly a fabrication aimed at creating an atmosphere of a united Court on the inappropriate nature of the conversations that he had had with the two Judges. Returning to why she had not cancelled the meeting she said: “I could not cancel the meeting on a mere speculation of what Judge Jafta will say. I did not know exactly why he wanted to come and see me, so it would have been improper for me to simply say to him, I don’t want to talk to you because Judge Jafta thinks that you’re going to talk to me about this case. But it is false that there was any fabrication on our part.”
  1. Responding to Hlophe JP’s statement that the suggestion that he intuitively and prophetically felt that there was no case against Mr Zuma was far-fetched and did not correctly record his conversation with her, she said “It is not true, Sir, he did talk about the case.”

  1. In reply to Hlophe JP’s response that he was “conscious” of his place insofar as her work at the Court was concerned, but that they had talked about privilege, she said that Hlophe JP had initiated a discussion on the Zuma case and on the aspect of privilege and she had “rebuffed” him by telling him that he was not entitled to do what he was trying to do.  She denied his statement that there was not a single time when it became necessary for her to say that he was not entitled to discuss the case with her.
  1. Responding to Hlophe JP’s denial that he had visited her for the purpose of attempting to influence her decision in the Zuma/Thint matters, she said: “Judge Hlophe came to my office; he talked about nothing else other than exchanging pleasantries and talking about Mr Zuma’s case, talking about the aspect of privilege. Telling me about his connectivity with the National Intelligence and other people who were in a list that he obtained from them. He didn’t talk about anything else. In my view, and this is my opinion of course, he must have come there to talk exactly about what he was talking about, and nothing else.”
  1. In answer to questions by Mr Bizos, she repeated that, in the light of what Mokgoro J had told her, after Hlophe JP had left, about her having lost confidential information in her computer, she tried to understand how he could have known that she had been allocated to write and had written about this question of privilege. This is one of the reasons that she had approached Mokgoro J.
  1. Asked by the Chairperson if Hlophe JP had mentioned to her that he was “politically connected” in view of his mention of “Ministers”, she replied: “When I asked him where is this concern coming from, he said that he’s connected to some Ministers that he from time to time advised. Well, may be this is the political connection but he didn’t use the words, ‘I’m politically connected’.” She also said that she had not been pressurised by anyone to talk to the CJ about the matter, not even by Mokgoro J’s coming back to enquire if she had reported the matter.
  1. In answer to questions by Mr Marcus (counsel for the Judges of the CC, except Nkabinde J and Jafta JA), she said that she knew Hlophe JP as a colleague, he was not a “friend” of hers, although they might share mutual friends like Jafta JA. Hlophe JP had never previously visited her in her chambers nor had he been a house guest of hers.
  1. She denied the following allegations made by Hlophe JP against her, all the Judges or the CJ and the DCJ: they were motivated by an inexplicable desire to get rid him, to get him impeached and to suggest that he is no longer fit to be Judge; they were motivated by “undesirable political considerations“; the CJ and the DCJ brought undue and inappropriate pressure on her and Jafta JA to act contrary to their consciences.
  1. In response to a question by Mr Madlanga for Jafta JA and Nkabinde J, she said that she did not understand the reference by Hlophe JP to a list and people who might lose their jobs, to be a reference to judges.
  1. In response to questions by Mr Ngubane, she said Hlophe J’s taking off of his jacket while in her chambers was not strange nor did it suggest he was a friend, he was a colleague. She also accepted that Hlophe JP had not said that they were friends, only that they shared mutual friends.

SUMMARY OF EVIDENCE OF LANGA CJ ON 7 APRIL 2009

  1. The CJ confirmed that on 30 May 2008, on behalf of the Judges of the CC, he lodged a complaint with the JSC against Hlophe JP.
  1. On 17 June 2008 he lodged with the Commission a statement supporting that complaint and another statement in response to the complaint of Hlophe JP.
  1. He also confirmed his statement of 4 July 2008 on behalf of the Judges of the CC which was a reply to Hlophe JP’s response to the complaint of 30 May 2008 as amplified by the statement of 17 June 2008.
  1. In response to questions by Mr Seligson, he said the allegation by Hlophe JP that there was an element of impropriety in his conduct and that of the DCJ and that the likely motive was an inexplicable desire to get rid of him, to get him impeached and to suggest that he is no longer fit to be a judge partly because of his Racism Report, the CJ said he did not have a desire to have Hlophe JP impeached; it was a painful matter to him. There has probably never been an impeachment in the history of the judiciary in South Africa. But the Commission is mandated by the Constitution to deal with issues of misconduct. He acted only with a view to the Commission adjudicating on the complaint. He had no ulterior motives. Nor did he climb on any bandwagon. He acknowledged that Hlophe JP had published a report on racism which had been dealt with by the Heads of Courts.
  1. Responding to the further allegation that he and the DCJ had rushed to the media and that they had acted improperly in publishing the fact of the complaint to the Commission, he said that on the day the complaint was laid with the Commission he spoke to Hlophe JP to alert him to the fact that the complaint was being sent to the Commission. He told him what the complaint was and Hlophe JP had simply said that he would respond. The reason that he had called was to get a facsimile number so the complaint could be sent to him. He was furnished with a facsimile number and the complaint was faxed to Hlophe JP. The Judges of the CC had also decided that the matter was one which should go to the media. He had not himself sent the media statement: the Media Committee of the Constitutional Court had done so but only after the complaint had been sent to the Commission and to Hlophe JP.
  1. Explaining why the Judges of the CC had issued a media statement, he said the complaint related to a matter which had been heard by the Constitutional Court, and which had evoked wide public interest. It was felt that it was in the public interest to deal with the matter quickly and to advise all the parties concerned quickly. It was felt that if the public had got wind of this matter it might go out in a manner which is not correct and in a manner which would cause problems and a lot of speculation in relation to the judgment on which the Constitutional Court was working at the time. It was also done in the interests of transparency. He said the complaint related to conduct which the Judges of the CC alleged amounted to an attempt to influence them in their decision in the pending matters.
  1. He said the complaint did not contain any details of the alleged conduct because the thinking was that Commission would take the matter up and indicate how it wanted the complaint to be sent to it, that is, to be amplified.
  1. He said that when he told Nkabinde J that he wanted a written statement from her, she indicated her reluctance to write any statement from the very beginning. But he had told her that once he got to know about the complaint, he had no option but to report the matter to the Commission. He would have done this with or without her statement. However, she and Jafta JA had indicated that they had no problem with a disclosure of this matter to the other Judges. But they were not enthusiastic about themselves telling the story to the other Judges. They carried through the same attitude to the writing of the statement of 17 June 2008. They contributed to it but were reluctant to appear as complainants.
  1. Asked if they were initially not prepared to be complainants as individual Judges but were prepared to be part of a group of Judges of the CC as complainants, he answered in the affirmative.
  1. Responding to allegations by Hlophe JP that the voice of Nkabinde J and Jafta JP had been suppressed, he said: “I had always understood them to be willing to be part of a complaint by the Judges of the Constitutional Court but not as individuals. There was no question of suppressing their voices, or suppressing whatever it was they wanted to say . . .
  1. Responding to the complaint that he and the DCJ had, at the meeting of 28 May 2008, shielded Nkabinde J and Jafta JA from questions and had not told the other Judges of the position recorded by Nkabinde J and Jafta JA in their statement of 12 June 2008, he said that he was unaware of that position at the time of the meeting of 28 May 2008. Asked if he had conveyed to the other Judges that the two Judges in question did not wish personally to be complainants, he said: “I must have conveyed to them . . . that the two Judges did not wish to speak.”
  1. He denied the further allegation that he and the DCJ had manipulated the meeting on 29 May 2008 by indicating that the two Judges were very distraught and that they did not want to speak. He also denied that in an attempt to maintain a veneer of judicial solidarity he had concealed the facts from the other members of the court and the public.
  1. He said that he had not brought pressure to bear on any of the Judges to take up the position that he and the DCJ had considered to be the correct one. Asked what it was that was conveyed to him that made him think that the matter was serious, he said that Nkabinde J had conveyed to him that Hlophe JP had raised with her and Jafta JA a case which had been heard by them in the CC. “[Nkabinde J’s] clear impression and my impression after hearing her, was that the approach was improper and it was designed to improperly influence her and the course of the judgment to favour a particular litigant. I thought this was an interference with the independence of the Judges themselves. It was an interference which went further than the two Judges; it affects the integrity or attempts to affect the integrity of the judicial process. In other words, the decision which the Constitutional Court was going to arrive at. That was the main issue. It seemed to me to be an attack on the institution itself.”
  1. He said that at the meeting attended by himself, the DCJ, Nkabinde J and Jafta JA, Jafta JA had given his version of events, which was in the statement. “[T]he version was to the effect that he had been approached and that he had considered the approach to be improper. . . and designed to influence him, to improperly influence him to bring about a certain result in the matter which we had heard.”
  1. He denied the allegation by Hlophe JP that he had masterminded leaks to the public in “a well orchestrated media campaign”. He said that he had had no contact with the media at all. He also said that he was unaware of any role played by O’Regan J.
  1. Responding to Hlophe JP’s contention that there was nothing wrong with a Judge approaching other Judges in chambers and discussing their cases with them, he said: “I think it creates a difficulty. There is a difficulty with a Judge who has not been in a particular matter getting into the entrails of the particular matter and discussing issues with the Judges who have been sitting. There’s nothing wrong with academic discussions but where the approach is, as I was told here, in relation to a particular matter which – to Judges who have been sitting in that particular matter, I think there’s everything wrong with a discussion of that nature, particularly if the impression is going to be created or words are going to be used which indicate that what is required is a particular conclusion. So I do not agree with the view put forward by the Judge President.”

  1. Reverting to the media statement, he said that during the discussion that had led to its issue the matters that were foremost were the public interest in transparency. They worried that if the approach to the Judges were to leak out they would not be able to control the situation or might have difficulty controlling it. “If the general public got to know that the Judge President had access to people who were going to make the decision in relation to that particular matter, with a particular mandate as the word came to be used in the approaches, that would affect the integrity of the judgment itself.”

  1. He said that it was not an option to give the Judge President details of the complaint and a chance to reply because “we looked upon ourselves as people who had been violated.” He would get a hearing from the Commission.
  1. In response to a question from Mr Moerane about the origins of their complaint, he said: “The account which Judge Jafta gave to us was simply that . . . the Judge President said certain things, the import of which was that the case should be decided in a particular way.”

  1. The CJ accepted the following: Jafta JA himself would not have taken the matter any further “because he had dealt with it in his own way”. Nothing had happened about the approach to Jafta JA until about a month later when Hlophe JP had contacted Nkabinde J who then talked to Mokgoro J, who talked to O’Regan J, who talked to the DCJ. The complaint and the media statement were in more or less the same terms.
  1. Asked if there was any reason why the particular judges to whom the approach had been made were not identified in the complaint or even in the media statement, he said: “The complaint was to the Judicial Service Commission and the details of which Judges had been approached were a detail. I’m not saying it was not an important detail but there was no specific reason as far as I can recall why they were not mentioned.”
  1. Asked if any consideration had been given to afford Hlophe JP a few hours or even a day to consider the complaint to enable him to react if so advised he said: “[T]he time was short between the lodging of the complaint with the JSC and him being informed . . . The purpose of informing him and of sending him the fax was so that he would not read about the complaint in the media, before he knew what this was all about. It is true that the time was short, yes.”

  1. Asked why, given the long lapses between the approaches and then the meeting of 29 May 2008, it was so urgent the matter to issue a public statement without giving Hlophe JP ample time to deal publicly with the complaint’ he said. The only thing that was different was that the Judges got to know about this and it was felt that they should take action straightaway and this is the action which they took. . . I’m afraid I don’t have a better answer to that.”
  1. Questioned by Mr Von Klemperer, he said when he telephonically told Hlophe JP about the complaint he neither denied it nor asked for a hearing. But he did not tell him that they were making a media statement.
  1. Mr Bizos raised the following matter: being the CJ, who presumably consults and attends conferences with other Judges, were the facts of this case, where a judge from another division approaching judges and discusses how a case might or might not be decided, unusual, thereby [justifying the lodging of a complaint] without evaluating it, without passing judgment on it. He said that it was a novel situation to all the Judges of the CC. They thought that they had to deal with it like they dealt with other matters in the Constitutional Court where there are no precedents. The procedure that they arrived at after discussion was a product of that kind of investigation and procedure. He added that because the person who had made the approach was a Judge he had the responsibility, once he got to hear to know about it, to inform the Commission.
  1. In answer to questions by Ngoepe JP, the CJ said that even if one accepted the correctness of the version of Hlophe JP as to what had transpired in the meetings with Jafta JA and Nkabinde J; he questioned why Hlophe JP had taken it upon himself to be speaking about certain aspects of the cases.
  1. As to why thirteen and not just eleven Judges had complained, he said at the time the cases were heard, two of the Court’s eleven Judges were on leave and their places had been taken by Acting Judges. When the two permanent Judges who had been on leave returned, they wanted to make common cause on the basis that this appeared to them to be an attack on the integrity of institution [the Court]. He rejected the allegation that the two Judges who had been on leave had been “mobilised“.
  1. He was then questioned by Ms Moroka on the absence of some of the Judges from some of the meetings. He said that June was a recess month. The absence from the meetings did not mean that the absent Judges were not part of the complaint or were not willing to be part of the complaint. He accordingly rejected that allegation that was “no unanimity on the correctness of the Court’s decision to transform itself into a complainant”.
  1. In response to questions by Mr Ngubane, he said when Nkabinde J spoke to him about the matter for the first time she told him that this was something which was worrying her. She had not said that she was making a complaint; she did not use those words. His attitude – even if not expressly conveyed to her then – was that she would have to make a statement. However, her answer was not categorical at the time that she would or would not make a statement.
  1. In answer to questions by Mr Marcus, he rejected a suggestion in the counter-complaint that at the time their complaint was lodged the decision in the cases had already been made. He also said that the practice in the Constitutional Court is that Judges do not discuss matters prior to the hearing of a case, apart from such questions as the issuing of directions or the determination on whether to admit persons as amici, “But we have a strict practice of not discussing the substance of matters which have been set down before the date of hearing of argument, we just don’t do it. After hearing a matter in Court we do discuss because that matter would have been allocated to particular chambers and the views are expressed. There is an exchange of, there’s a debate in fact about issues but it’s confined to those Judges who have been hearing the matter. If a particular Judge was not part of the Panel, that Judge would be excluded from those discussions and that is a strict rule.”

SUMMARY OF EVIDENCE OF MOSENEKE DCJ’S ON 7 APRIL 2009

  1. The DCJ confirmed the correctness of the averments made in the various statements made by the CJ on behalf of the Judges of the CC insofar as reference was made to him.
  1. Mr Seligson said that the gravamen of the counter-complaint was the procedure that was adopted by the Judges of the CC in initiating the complaint with the Commission and simultaneously issuing a press statement amounted to gross misconduct. He was asked why that particular procedure was adopted.
  1. He said the statement of the CJ set out the reasons. It was arguably the most difficult thing that the CJ, he and the rest of the Judges of the CC had to confront. It raised a number of very important issues and challenges. The first challenge was that the complaint was connected to a live case before the Court. It was important that the parties to the case did not feel that the impartiality of those Judges who sat in the matter had been compromised. The concern was that should the matter leak in circumstances where the Court itself did not explain its essential features, great harm would be caused in relation to the case before the Court and in relation to the institution. Hence the following procedure: firstly to lodge the complaint with the Commission; thereafter the CJ would call Hlophe JP to inform him of the complaint and to furnish him with a copy of it; and only thereafter to issue a press release which in substance was in the same form as the complaint. The second concern was that it would be inappropriate for the complaint to find its way into the public space in any other way than pronounced by the Judges of the CC. The third important consideration was that they considered that they, as complainants, rather than the body investigating the complaint, had a duty to disclose the gravamen of the complaint. Although there were a few other ancillary reasons, those were the primary reasons for the early and public disclosure of the complaint.
  1. Responding to the counter-complaint they had gone public without giving Hlophe JP an opportunity of dealing with the matter and in that way had damaged his reputation and his dignity and had thus acted in a way that was contrary to the Constitution, he said they had acted in pursuance of the requirements of the Constitution. Because they were complainants, not the body that was tasked with investigating the complaint, their assessment was that they were not obliged to give him a hearing. That power constitutionally resides with the Commission and they would have been usurping the powers of the Commission. It was their view that they ought to lodge the complaint with the Commission and await its directions.
  1. He was asked whether, despite the fact that the Supreme Court of Appeal had vindicated that position, they ought not to have accorded Hlophe JP some kind of advance notice or hearing before they went public. He responded that “No, in our view, speed was indeed of the essence, given the risk and the potential harm in relation to the credibility of the outcome of the case, which was then before the Court.” He added that the litigants would be entitled to know. So would the public. In addition, he said: “[W]e did believe our colleagues. We had occasion to listen carefully to their versions. We had no cause to doubt those versions and we don’t have any cause to doubt them now. But we understood that we were not the triers of facts. The JSC would try those facts. So we were no more than complainants who were aggrieved by a certain conduct and who sought to bring it to the attention of the JSC. But because of the particular circumstances of this case, we took the view that it was necessary also to bring it to the attention of the public.”
  1. He said that he had been saddened by the allegation that he and the CJ had been motivated by a desire to harm Hlophe JP and to see that he was removed from office. He denied the allegation. He said that they thought they actually had a very good relationship with the Hlophe JP and had always hoped that his career would flourish. He had no reason whatsoever to want to cause him harm.
  1. He rejected, with sadness, the further allegation by Hlophe JP that he and the CJ and possibly the other Judges of the CC had exercised undue and inappropriate pressure to bear on Nkabinde J and Hlophe JP to join in the complaint against him. He also denied that he and the CJ had concealed from the other Judges of the CC and from the JSC the complete and true facts about their reluctance and the position they had taken. He said that the two Judges had prior to the meeting of 29 May 2008 indicated that they would choose not to be subjected to questioning at the Judges’ conference. They were present but had not disagreed with what he and the CJ had said.
  1. He said that the most hurtful of the allegations was that he had a political motive and was part of a plot to make sure that Hlophe JP would be impeached. He added: “In our view it was inappropriate for a judge to move from one court, where she or he ordinarily is stationed, to go to another court and to seek to raise matters relating to the merits of a case pending. And it was therefore necessary to stem that quite early, and one clear way was to report that conduct.”
  1. He denied the various allegations made by Hlophe JP about him and the CJ relating to the following issues: that he was being victimised because of the Racism Report that he had drawn up and because he championed transformation; the complaint had been brought so that Hlophe could be impeached: it had been brought to stem any risk to the proper functioning of an institution that is central to our democracy; and disrespect for constitutionally entrenched rights. He said that they had no intention to harm his dignity. He also said that did not want to get rid of Hlophe JP and hoped that his career would flourish in the future.
  1. He was then questioned by Mr Moerane. Asked why the Judges whom Hlophe JP had met had not been identified in the initial complaint to the Commission, he said that they had understood that the complaint had to be followed by evidence in the form of affidavits or a much more expansive explanation and that in that explanation chapter and verse would have to be set out. He said that one of the reasons that a more particularised complaint had not been lodged in the first instance was that Jafta JA and Nkabinde J had taken the view that they were reluctant to make statements individually. He agreed that the two had actually refused to make written statements up to that point.
  1. Asked whether, because they were dealing with a colleague, a Judge President, and taking into account comity and collegiality, it would not have been proper to give Hlophe JP enough time – if only a few hours rather than minutes – to deal with the intended press statement. He said: “Ja, notionally it could have happened that way.” But he pointed out that he had not operationalised the procedure to release the statement.  In fact he was absent.
  1. In response to a question by Prof Neethling, he denied an allegation by Hlophe JP that the Judges of the CC had breached confidentiality by announcing the complaint through the media. He again explained why the media statement had been issued.
  1. Ngoepe JP raised the following issue: the complaints had been discussed for some days within the Constitutional Court; some meetings had been held. In that time leakages could have taken place. In the circumstances, would it not have been better to have given Hlophe JP a day before issuing the media statement. He answered that “[T]here are two terrains. I think the first terrain relates to what the law required of us at the particular time. And the other terrain might well be what was more congenial, what was more to be preferred in those circumstances. As I understood the attitude of our colleagues as we discussed the matter, having listened to Justice Jafta and Justice Nkabinde they believed them, they considered the allegations to be serious. They did not think it was their place to check the veracity of those allegations to the extent that they made common cause with the two Judges. And that in time the Judge President would have the unmitigated opportunity to put forward his version before a body that is specifically constituted to investigate those facts. And the second thing, because we made common cause with the two Judges, having listened to them carefully, we did not think that what the Judge President said then would controvert, would change the complaint. The two Judges would have in time testified and they will have to make the complaint. And for my part I did not think my duty was to make an enquiry as a complainant at that stage. I knew that this forum would in due course enquire into the matter fully. But I must again say that I believed the two Judges, having listened to them carefully relate what they say occurred, and that is why we were complainants, co-complainants with them. We didn’t pretend to be impartial parties trying to find out the truth. We felt it was an invasion of the responsibility the court had, and we would make common cause with these Judges to bring it before the JSC.”

  1. In response to questions from Mr Marcus, he denied that he harboured an anti-Zuma bias; and that because he had not been on the panel of Judges that had heard the Zuma/Thint cases, he ought not to have been a complainant. In expounding on his denial, he said that he took seriously his oath of office and himself to be in the service of all the people of the country, as required by our Constitution. He was a complainant because he regarded the approach as a possible assault or a threat to the institution, not just the individual Judges.

SUMMARY OF EVIDENCE OF MOKGORO J ON 8 APRIL 2009

  1. Mokgoro J confirmed the correctness of what was set out in the various statements made by the CJ insofar as they concerned her.
  1. She stated that during May of 2008 Nkabinde J had disclosed certain facts to her when seeking her advice.
  1. Nkabinde J told her that she was visited by Hlophe JP.  He had called her earlier to make an appointment to come and see her on 25 April 2008.  On arriving at her chambers he started with general pleasantries.
  1. “[T]hen he started off by saying to Nkabinde, J, that he has a mandate, and having said that, he added that there is no real case against Mr Zuma.  You know, Mr Zuma is being persecuted in the same manner as he had been during his issues at the Cape High Court.  And there is need therefore to decide this privilege issue that the Court is dealing with properly.  Nkabinde J told me that she was disturbed at this approach but then I asked her how she dealt with it, what her response was and she told me that she made it quite clear to him that it is really not his concern.”
  1. She said that Nkabinde J had made it quite clear to Hlophe JP that the Zuma/Thint matters were really not his concern. Mokgoro J stated that “I was totally shocked at the idea of this approach and the manner of approach.”
  1. She stated that Nkabinde J appeared to have been disturbed by the approach and added “But then I was equally disturbed, shocked, and for a while we discussed about what we need to do with this information and I advised her to get it reported to the leadership, as I put it: she should speak either to Judge Langa or Judge Moseneke.”  At the time the DCJ was on leave, but they agreed that she would report the matter to him.
  1. Mokgoro J approached her the following morning and asked if she had discussed the matter with the DCJ to get an indication on how to handle the matter.  Nkabinde J told her that she had not.  Mokgoro J was concerned and again impressed upon her that she had an obligation as a judge at the Court and as a judge in general to report the matter.  She told Nkabinde J that what was at stake here was the integrity and independence of the judiciary as a whole and in particular, because of the manner in which the issues were raised, the integrity and the independence of the Constitutional Court.  She again impressed upon her the importance of reporting the matter and not sitting on it and as they did not know who Hlophe JP was talking to about the matter.  She told Nkabinde J that it would be advisable, as soon as possible, before the matter emerged somewhere else, particularly in the public domain, to get it dealt with by the Constitutional Court.
  1. Nkabinde J told her that she was busy and was still thinking about it.  Mokgoro J was bothered by this and in case she was overreacting, approached O’Regan J.  She told her she was raising a matter which Nkabinde J had raised with her in confidence and she had promised not to disclose it.  But she was bothered and hence, in similar confidence disclosing it to O’Regan J and wished to be reassured that she was not overreacting.
  1. Among the reasons she had approached O’Regan J were that they had a lot in common and she would have an appreciation of her perspective, were both women and had come a long way together, having started together as women at the Constitutional Court and would give Mokgoro J her honest views about the matter.
  1. She disclosed to O’Regan J what Nkabinde J told her and asked whether she was overreacting.  O’Regan J said she was not and they agreed that Nkabinde J should be encouraged to report the matter.  Mokgoro J went back to Nkabinde J told her that if she found it difficult to report the matter to the CJ, maybe she should take the DCJ into her confidence and just talk to him to get an indication on how she should approach the CJ or deal with this matter.  Mokgoro J believed that there was a need to report the matter as soon as possible.  Nkabinde J told her that she will do it, but she needs time to think about it and she was still very busy.  However, she would at some stage discuss it with the DCJ. Mokgoro J went back to O’Regan and told her that she thought Nkabinde J would do it.  However, they agreed that because Nkabinde J appeared to be finding it difficult and the matter might emerge in the public domain before they could handle it, she and O’Regan J would talk to the DCJ and ask him how they should deal with it.
  1. They agreed they would go that evening to his apartment in Johannesburg. But she had to rush to attend to some family matter and they agreed that O’Regan J would do it alone. She did see the DCJ.
  1. She said that at the first “encounter”, Nkabinde J had told her that Hlophe JP had also approached Jafta JA “with similar intentions or ideas”.
  1. She denied that the CJ, the DCJ and the other Judges of the CC including her exercised undue and improper influence and pressure on Nkabinde J and Jafta JA to make a complaint. Whilst she impressed on Nkabinde J the need to report the matter as soon as possible, this was not improper pressure. She believed that it was the right thing to do.
  1. She denied the allegations of undue pressure, manipulation, and mobilization of the Judges, without all the facts being conveyed to the Judges by the CJ and the DCJ.  She said that they all faced a difficult situation. She said the two judges who had been approached were “distressed”.  In fact they were all distressed.
  1. She denied that her informing O’Regan J without reverting to Nkabinde J was not warranted.  Nkabinde J was disturbed, so was Mokgoro J.  She said her motive in bringing the matter to the attention of O’Regan J and agreeing with her that it should be brought to the attention of the DCJ was that if the matter was brought to the public, it must be through the Judges of the CC.  It was important for them to let the public know that this is not how they deal with the administration of justice. It was also important for the Court to reassure the public that if there was anybody anywhere who has any similar motives, it would be nipped in the bud.
  1. Asked if she had any intention or motive to injure Hlophe JP, she said that she said “If there’s any injury that has been done, in my view, Judge Hlophe had done that injury to himself.”
  1. She was then questioned by Mr Moerane. She said that Nkabinde J had first talked to her (about this matter) in about the second week of May when the term had just started. She agreed that the approaches had taken place some time earlier – to Jafta JA more that five weeks earlier and to Nkabinde J some two weeks earlier – but that no “leaks” of the fact of the approaches had taken place.
  1. She did not know when she spoke to Nkabinde J for the first time, whether she had intended to do anything about the approach. She had simply asked for advice on how to handle it and Mokgoro J told her to let “the leadership” know what happened. She did not know if Jafta JA intended doing anything about the approach.  She first spoken to O’Regan J on the day after Nkabinde J had first spoken to her. The first meeting of the Judges of the CC was on 28 May 2008.
  1. She had not gone back to Nkabinde J between the first week of May and 28 May in respect of the matter. And, because Nkabinde J was “not supposed” to know that she had spoken to O’Regan J about the matter, Mokgoro J did not tell Nkabinde J that she had spoken to O’Regan J.  Mokgoro J and O’Regan were going “to try to work behind the scenes” to get Nkabinde J to bring the matter up with the leadership.
  1. She said that she did not want Nkabinde J to know that she had spoken to O’Regan J because Nkabinde J had spoken to her in confidence and clearly had not wanted her to reveal it at that time. She believed that Nkabinde J had been uncomfortable when she discovered that Mokgoro J had spoken to O’Regan J.  She felt that Mokgoro J should have left it to her: she needed the time, she needed to think about it, and she wanted to do it herself.
  1. She did not necessarily agree that if she had not reported the matter to O’Regan J it might have never reached the leadership.
  1. She did not think that they would let Hlophe JP know that, in addition to laying the complain with the Commission, they were going to issue a media statement.  She could not recall that the question of informing Hlophe JP that they were going to issue the media statement had ever been discussed.
  1. Asked whether Nkabinde J’s concern, when she had raised the matter with her, was that Hlophe J knew that she was writing a post-hearing note on the issue of privilege rather than the fact that he had discussed the issue with her, she answered as follows: “When Judge Nkabinde raised this, the fact that the JP knew that she was dealing with the privilege issue, when that arose, between us the discussions that we had were, number one, how he knew that she was dealing with that issue, and also how he knew that that issue was kind of a sticky point in our deliberations . . . [A]nd in the context of the JP’s statement that that issue has to be decided correctly, I think there was also an understanding that that is a concern. Not only that, not only about how he knew that she was dealing with this issue but also that we need to decide that issue correctly. In my mind I think there were two issues about the privilege question.”
  1. In answer to a question from the Chairperson, she said that “During our discussions with Judge Nkabinde, the question of the JSC dealing with the matter had not arisen. That arose much later during our discussions when this matter was revealed to the rest of the colleagues, when we had now agreed that we’re going to lay a complaint with the JSC. But during our discussion with Judge Nkabinde, our concern was – or my concern was really that the matter has to be disclosed as soon as possible. Because I was particularly worried about what would happen, in the context of the integrity of the judiciary, the way we do justice in this country that it might erupt somewhere before we are able to deal with it and take control of the situation. That was the worrying issue. The JSC issue hadn’t at that point arisen. I hadn’t really stretched my mind so far at that point.”
  1. Against that background, she disputed the allegation by Hlophe JP that the Judges of the CC wanted him impeached.  She had not even thought about impeachment. All she was concerned about was the integrity of the judiciary and that they needed to do something about it before people knew that Hlophe JP had approached them.
  1. She was then questioned by Ngoepe JP.  In answer to questions from him, Mokgoro J said “The common understanding [of the Judges of the CC] was that Nkabinde J and Jafta JA had to be taken at their word.  If they said this is what had happened there was no reason not to believe that that is what had happened.
  1. Commenting on Hlophe’s JP’s complaint that they arrived at the decision arbitrarily and without allowing him to even make representations before such a decision was taken, she said “You know what was happening here was that colleagues related events that had occurred and we as Judges of the Court were sitting there, not as a decision-making Court or decision-making tribunal where we, on the basis of facts that were brought before us, make a decision to find somebody guilty or not. That was not what our decision [was] about. We were sitting there as complainants and I think that was my understanding of the matter. We were sitting as complainants. This is what happened, this is cause for complaint and we’re taking this complaint. We agree that this has happened, we’re taking this complaint to the tribunal which is going to have to make a decision whether the JP is guilty of this kind of misconduct or not.”
  1. She did not believe that there was any legal obligation on their side, as complainants, to hear both sides of what had occurred. That was the role of the Commission. Hlophe JP would get his opportunity at the Commission, which would determine whether these events had taken place and what consequences should follow.
  1. Asked whether, in the circumstances, it would not then have been better for statements to be taken from the two judges to be sent to the Commission with a covering letter saying that the other judges were neutral and it is for the Commission to decide. That would have made the task of the Commission a little easier. Her answer was as follows: “[A]s the complainant, I don’t think we were neutral. That’s a complaint, we have a complaint. It is not for us to judge.” She added that “they had no legal standing even perhaps to ask Hlophe JP for his side of the story. That fell within the jurisdiction of the Commission.”
  1. Mr Bizos pointed out that nine Judges of the Supreme Court Appeal had confirmed that there was no obligation to hear Hlophe JP. But the question was what had prompted them to make the public statement. With the benefit of hindsight, she said, they might have done it differently. But, at the time there was a nagging urgency to do something as soon as possible, lest it erupts in the public domain. She said that they had not intended to deprive Hlophe JP of any of his constitutional rights by not giving him an opportunity to respond.
  1. In answer to a question by Mr Madlanga she said that prior to becoming aware of the visit by Hlophe JP to Nkabinde J she had once during a weekend telephoned Nkabinde J about a concern that there might be “leaks” in the Constitutional Court’s information system. This is after some of her emails could not be located. However, on the Monday the Court’s IT Director retrieved the information and told her that there was probably just something wrong with her computer at that point in time.
  1. In response to Mr Marcus, she denied an allegation by Hlophe JP that she acted vindictively towards Hlophe JP. She denied the further accusation that she was motivated by political considerations.

SUMMARY OF EVIDENCE OF O’REGAN J ON 8 APRIL 2009

  1. She confirmed the correctness of the allegations in the statements of the statement made by the CJ, insofar as they concerned her.
  1. In answer to questions by Mr Seligson, she said in early May 2008 Mokgoro J made a report to her.  Arising from that report, she told the DCJ what she was told to her about the visit that Hlophe JP had made to Nkabinde J late in April 2008.  She was the Acting DCJ from 15 February to 31 May 2008, the DCJ was on long leave.
  1. The complaint by the Judges of the CC to the Commission was made on 30 May 2008. However, the Commission had asked for details in the form of a statement by each of the two judges concerned.  She said that she discussed the matter with Nkabinde J and Jafta JA.  They said that they would like to appoint counsel to assist them, which she arranged. The deadline for the statements was set for the end of that week. Towards the end of the week they said they were not going to be in a position to consult with their counsel until the weekend. She wrote to the Commission requesting an extension to 13 June 2008, which the two judges had accepted as the new deadline.
  1. She said that counsel were appointed because the two judges wanted counsel.  At that stage no counsel had been appointed at all. The appointment of counsel for the other Judges of the CC happened only in the following week when the CJ returned. He thought it would be appropriate to appoint counsel for the other judges.
  1. She said that the two judges had been a party to the complaint. Consequently their joint statement of 12 June 2008 to the Commission in which they stated that they had on a number of occasions informed the CJ and DCJ that they were neither intending to lodge a complaint nor willing to make statements about the matter.  The matter came as a surprise to her. But her understanding of it was that the two judges were of the view they should not be singled out.  A joint complaint had been laid by the Court. They were party to that. But they did not want to be seen as individual judges laying a complaint. But they did not tell her that they were going to lodge the statement of 12 June 2008.
  1. She said that she was aware that the two judges were uncomfortable, but they had been working on a statement in the week of 8 June 2008 and discussed the text that would be inserted in that statement relating to the conversations between Hlophe JP  and Nkabinde J and Jafta JA. When all the Judges of the CC finally met on 16 June 2008, the statement that they had been working on formed “the rump of the statement” that was placed before the Commission on 17 June 2008. The two judges were party to it and the statement contained more detail than had originally been included.
  1. She rejected the following allegations made by Hlophe JP: she, the CJ, the DCJ and Mokgoro J were engaged in a political conspiracy or plot against him; pressure had been brought to bear on Nkabinde J and Jafta JA to get them to join in the complaint; or the decision that he was guilty of improper conduct had been arrived at arbitrarily or in a vindictive manner.
  1. She said that once it was “confirmed to her as a true story their only option was to lay a complaint. It was their ethical obligation to protect the institution, to be sure that the Court is impartial and that there have been no improper attempts on the Court”.
  1. The issue here was that the problematic conduct related to a matter before the Court. Consequently, it was not appropriate for them to raise the matter with Hlophe JP. Had they done so, it would appear as if they were trying to do be judges in their own cause, and make factual findings. These had to be determined by the Commission. They merely facilitated the process by putting the information before it.
  1. Responding to the allegation that an unfair process had been adopted, she said “The fundamental concern that they faced was that the complaint related to a matter which they were hearing. Their primary concern was that none of this leaked into the public arena before they had had an opportunity to say clearly that the Court had not been affected by this attempt and that the Court would be able to continue to determine the case. She understood that the process before the Commission needs to be a fair one and it had adopted rules to ensure that that is the case. Beyond that they had another set of concerns: presiding in a matter which had attracted an enormous amount of public attention and in which they wanted to satisfy both the parties to the case and the general public that this would not impair the quality of justice that would be delivered in that case.”

  1. In answer to a question by Mr Bizos, she said that when she spoke about the “Court”, she was referring to individual Judges of the CC, all 13 who had been involved in the matter.
  1. In answer to questions by Mr Marcus, she denied the allegation by Hlophe JP that they had been motivated “by undesirable political considerations”. She also denied that there was anything sinister in the absence of some of the judges from the meeting of 13 June 2008. She said that they were on recess and not all judges could attend all meetings.
  1. Mr Moerane pointed out that the gravamen of Hlophe JP’s complaint was that the Judges of the CC had gone public with the complaint without giving Hlophe JP an opportunity to place his side of the story. She was asked if any consideration to give advance notice or warning to Hlophe JP about the statement and its contents was made. Her answer in respect of the advance warning on the media statement was that “[W]e were anxious that Judge Hlophe should be informed of the complaint before it was laid, which we asked the Chief Justice to do, which he then indeed did do. But we were anxious that once it was laid, that we would not be in a situation where it would be leaked to the press and there would be a lot speculation about what the implications would be for the matter that was concerned. And we wanted to forestall that by clear statement from the Court that those matters had not been impaired, and indeed we followed that up with an opportunity, which we thought again was a requirement of fairness, to the litigants in that matter, and those four matters to lodge further submissions with the Court. And now I’m talking about us as a Court rather than individual complainants because unfortunately we were sitting as a Court in relation to that case, and we did indeed receive argument and we did indeed deal with that in the judgment. But the concern was that if the matter were to be aired in the public without the Court having said anything, it would lead to an enormous amount of speculation which might have been extremely damaging to justice in that case and to the administration of justice generally. It was a difficult decision, unprecedented. We did talk about it at some length and as I say, our concern was not only in relation to Judge Hlophe which was obviously a concern, but also in relation to the litigants in a case before the Court. We felt it was a very difficult decision but that was the one that we reached, as I say, and followed it up, something about which I think Justice Hlophe also complains, with directions to the litigants to give them an opportunity to respond. We had to use a whole lot of analogy to try and ask and debate what was the appropriate conduct, whether when one knows that there had been an attempt to interfere with the administration of justice, what one’s obligations are. I should add finally that the Court has always been very concerned about principles of openness and transparency in the way it works. And it is unlike many Courts, we do seek to be committed to the principle of open justice as best we can and I think that informed the decision, as well as the concern that the damage that may be caused by a premature leak which would lead to speculation and debate.”

  1. Pressed on the need to publish the decision to lodge the complaint within minutes of informing Hlophe JP of the fact of the complaint, O’Regan said “[W]e were in our last day of our effective Court term and there wasn’t really a lot of discussion as to exactly how this timing was going to work. At the end of day, this was a matter that was managed by the Chief Justice. But the real issue was that, by definition, you know, we are a porous Court. There are 22 law clerks, there are 11 Judges, and we were fairly confident that once it became known that a complaint had been laid to the Judicial Service Commission, that the matter would end up in the press. And if you look at the contents of what we said, it was really to try to allay fears about the implications for the administration of justice in a difficult climate that we put into that statement, and rather than any focus in fact on the content of the complaint. And time was really – it was a difficult time, and I hear what you say. I mean, I think it was an unprecedented and difficult matter. But what I do think was important was that the Court, or the Judges of Court were very conscious that we had a responsibility to the litigants before us in those fours matters, and to the public who are interested in those four matters, on the one hand, and we also another responsibility to Judge Hlophe on the other. So it was a difficult position.”

  1. “My own sense is that the Judges were also fairly clear that it would be inappropriate to try to hold any kind of hearing ourselves to determine the correctness or otherwise of the facts, and the facts had to be determined by somebody other than us. That it would look like we were usurping the functions of a different constitutional institution, if we sought any kind factual investigation. So, delay for that purpose, we were not persuaded would be correct.”

SUMMARY OF EVIDENCE OF HLOPHE JP 30 JULY 2009

  1. It should be recorded that Hlophe JP indicated that he would prefer to answer question whilst under the oath. He was duly sworn in. In answer to questions by the Chairperson, Hlophe JP confirmed that he had visited the Constitutional Court and spoke to Jafta JA toward the end of the March 2008 and to Nkabinde J about three weeks or so thereafter, on 25 April 2008.
  1. In respect of his visit to Nkabinde J he confirmed that he spoke to her about the Zuma/Thint cases at the time when the judges were still working on their judgment. He said that he made reference to the cases in the context of asking her how she was settling down in the Constitutional Court.  He had not spoken to her since her elevation to the Constitutional Court. He had met her about six years prior to that date, after she had been appointed as a judge. He did not know her at all, even though they had mutual friends and shared some things in common, such as Labour Law.
  1. On the day he had met Jafta JA, as he was leaving the chambers of Ngcobo J who was escorting him to his car, he met Nkabinde J and Madala J who were walking in the passage. He told her he had not seen her in a long time, particularly after she had been appointed to the Constitutional Court. He told her that the next time he was around he would pay her a visit and she agreed. He then called her on 23 April 2008 to tell her that he would be in Gauteng. He was going to be in Gauteng on 25 April 2008 and on 24 April 2008 he was attending a dinner hosted by Minister Mabandla [the then Minister of Justice] in honour of women who were being fast-tracked. He told Nkabinde J he would be present at the dinner and that the CJ mandated him to chair the Local Organising Committee.  He had to be at the Constitutional Court where the meetings were to take place on 25 April 2008. He told Nkabinde J that he was going to be working at the Court precinct.
  1. Nkabinde J agreed that he could visit her. Nkabinde J was present at the dinner on 24 April 2008 and so were the CJ and a few other Heads of Court.  Nkabinde J gave the vote of thanks.  He met her after the dinner. She introduced him to her husband and he confirmed the appointment for the following day.  She indicated that if he visits her in her chambers it should be before lunch because she was going to be on duty together with the CJ and she was going to drive home to the North West.
  1. He arrived at the Constitutional Court around 11:00, 11:30.  He was accompanied by his body guard. After he announced himself, someone was sent to take him to her chambers. After they sat down, they had a chat. He started by congratulating her on her elevation to the Constitutional Court.
  1. Asked what he said to her about the Zuma/Thint cases, he said they spoke about a number of things concerning the cases. After he congratulated her on her elevation to the Constitutional Court she told him that she found the work to be very challenging. He told her it must be challenging given the kind of cases that come up to the Court, given that this is the final court in the land. While they spoke, he saw in the corner of her chambers, a number of files. He asked when they were going to give judgment in the Zuma/Thint matters, which is an interesting matter. Every lawyer was talking about it.
  1. She told him that they were busy as a Court writing the judgment. Everyone was writing different pieces of the judgment. She told him she was writing a note to on privilege.
  1. He did not say that he had “a mandate”. He used the term mandate in the context of saying he was in the Constitutional Court because the CJ had given him a mandate to come and chair the Local Organising Committee. Nor did he say he was connected high up in politics or the National Intelligence Agency.
  1. Their discussion was no more than a discussion of a general nature, talking about the principles. They never spoke about the facts of the Zuma/Thint matters. He did not say to her in his view this is how the case must be decided. He added: “Surely I could never do that as a Judge, I never said that.”
  1. After he had remained in her chambers for about 20/25 minutes – at most it was 30 minutes – he had a call from the secretary of the CJ because the CJ was expecting him in the building.
  1. Relating to Jafta JA, he said he visited Jafta JA in his chambers in March 2008. He said the discussion of the cases had arisen when he asked Jafta JA how he was enjoying himself with the kind of work that he was doing. (He knew Jafta JA who had been a lecturer in Transkei in Hlophe JP’s department) and his expertise in Constitutional Law.  Jafta JA told him the work was very challenging and complained about some things in the Constitutional Court concerning management.
  1. In respect of the Zuma/Thint cases, Jafta JA told him the case was challenging. He confirmed that they were writing different parts of the judgment, as a Constitutional Court.  Different judges were assigned different aspects of the judgment and did not know when the judgment was going to be delivered. He told Jafta JA it was a very important judgment and that every lawyer in the country was talking about it and so was the public. In the light of the split decision in the Supreme Court of Appeal (3-2), he told Jafta JA that “Your judgment against that background is going to be very, very important for us, as trial lawyers”.
  1. He denied going to Jafta JA’s chambers without an invitation. They had a specific appointment and he was there for about an hour and a half. He said he used a Zulu expression sesi thembele kinina. Explaining the context he “Now uthembele in Zulu means trust or hope but the expression, sesi thembele kinina, if I say sesi thembele kinina, it’s an encouragement. If I say sesi thembele kinina bafowethu [and] I said that, it’s an encouragement.”
  1. Explaining what he meant, Hlophe JP said “[T]he expression, sesi thembele kinina, was never used in the context of saying the case against Zuma must be decided properly. It was never used in that context. We had an hour and a half’s discussion, so clearly it was not used in that context. But when I parted with Jafta, I said hey, sesi thembele kinina bafowethu, you will sort out this once and for all. I did say that in the context of our discussion but definitely not in the context allegedly of where I was saying the case must be decided properly or in favour of Mr Zuma, which I deny. I never said the ruling of the court should be in favour of Zuma.”

  1. Asked what he was conveying, Hlophe JP said: “[Through] the expression, sesi thembele kinina, I was saying look, we trust that you are going to be behave as a Constitutional Court, as the last court in the land to clear up the uncertainty which clearly was created as a result of, in my view, of the ruling of the Supreme Court of Appeal relating to privileged communication. Which is, as I said to Jafta, it’s important for us as trial lawyers to say how we are going to deal with any information which was allegedly obtained unlawfully under Section 35 of the Constitution. It was used in that context, sesi thembele kinina, we trust you are going to clear this uncertainty once and for all.

  1. “In fact, the case, the ruling of the Supreme Court of Appeal, everybody knows it split the nation on the issue of privilege. Every lawyer in town, every lawyer in the country was talking about it. But I never said the finding must be made in favour of Zuma. Sesi thembele kinina, you are going to find Zuma innocent, I never said that.”

  1. Dealing with his intention, Hlophe JP said: “I never had any intention to improperly influence, let alone to improperly persuade, which is the language used by the Chief Justice in his statement, which is quite strong. I mean, ‘persuade’ means to convince someone, make someone believe, you cause someone to believe, is quite pretty strong. But even at the level of improper influence, I could never have intended to influence Judges of the Constitutional Court.”
  1. It will be recalled that I spoke to just two Judges of the Constitutional Court, Judge Nkabinde and Judge Jafta. Now quite clearly if I had any intention to influence a court consisting of eleven judges the most obvious thing for me to have done would have been to speak either to all judges or to those that I considered influential. For that matter, I did call Justice Moseneke because I came across his bodyguard at the parking. There is no suggestion that on the phone I said to him, hey, I want to see you, I want you to sort out this Zuma case. That’s not what he has said.”

  1. “On the same day, with respect, when I went to see Judge Nkabinde, I also proceeded thereafter to the chambers of the Chief Justice to announce myself that I was there. There is no suggestion that I ever spoke to the Chief Justice about the Zuma case, nor that I even suggested to improperly persuade him or influence him. And one should not lose sight of the fact that the first time around in March when I met with Judge Jafta, on that very day I saw Justice Ngcobo in the Constitutional Court. I’ve known Judge Ngcobo for years whilst we used to work together in the Legal Resources Centre. There is no suggestion, with respect, that I attempted to influence Judge Ngcobo on that day, nor that we even spoke about the case. And one must not lose sight of the fact that there is no suggestion that I threatened anybody nor that I bribed anybody.”

  1. “The suggestion is that I said people should be careful, they’re going to lose their jobs. I mean, with respect, I fail to see how that can ever be tantamount to influencing a judge who has tenure. Judge Jafta is permanent in the Supreme Court of Appeal – sorry, Judge Jafta is permanent in the Supreme Court of Appeal and Judge Nkabinde is permanent in the Constitutional Court. So I fail to see how, in the absence of any suggestion that I threatened them or that I bribed them, how it could ever be suggested that I had any intention to improperly influence them.”
  1. “And finally, Mr Chairman, it is not without significance that ever since I visited the Judges concerned, I never made a telephone call just to follow up on my so-called mandate. I never spoke to them thereafter, until of course the statement issued was issued by the Judges of Constitutional Court, it went to the media. In fact, I’ve never seen Judge – both Judges Nkabinde and Jafta since that incident, so we have never spoken. I fail to see how anybody who has a mandate to influence anybody improperly, would just raise something and disappear and not follow it up.”
  1. The Chairperson responded saying “Yes, well, it may be argued that it is because you felt you had achieved what you wanted to achieve. But that is not an issue. I’m happy that there is no suggestion that you followed up and so forth but let’s leave that out of the case, it’s not an issue.”
  1. Asked if he had expressed his views on the strength or otherwise of the case against Mr Zuma, he replied “No, I did not. What I did say was that upon responding to both judges because both Jafta and Nkabinde asked me how was I doing in the Western Cape, the negative publicity and so on that I’ve had. I did say . . . I’m like Zuma, people will always find something wrong with me, that I did say. It’s a personal opinion, I don’t regret it. It’s a personal opinion.”
  1. Asked if, despite the fact that he had not intended to improperly influence anybody, was there a possibility (not necessarily a probability) that an impression could be gained that he had tried to do so.  Hlophe JP conceded that it was possible. He said Jafta JA said so in his evidence before the Commission on 7 and 6 April 2008 and told the Commission that he formulated that view after learning that Hlophe JP later had a discussion with Nkabinde J, but that was a wrong impression. He said neither of the judges “rebuffed” him. What Jafta JA said was not true; neither had rebuffed him. They were having a dialogue.
  1. He was then questioned about his counter-complaint. He conceded that it would not be wrong for judge A to report judge B to the Commission if judge A got the impression, however wrong the impression was, that judge B was trying to unduly influence him or her.
  1. Hlophe JP emphasized that his complaint was different.  His complaint was about the manner in which it was done. He said having regard to the mail list, the Constitutional Court statement was sent to the public, including the Democratic Party. It was not sent to other parties, it was sent to the Democratic Party.
  1. He confirmed that, as a result of the manner in which the issue was handled he felt that the CJ and the DCJ were improperly motivated. He accepted that this was an inference that he had drawn. Having regard to the explanations that they had given for their decisions, and their about improper influence, he was asked if the inference could still be made.
  1. Hlophe JP dealt first with the conduct of the CJ. He said he could not prescribe to him on how he should deal with complaints that he receives about judges as the head of the judiciary. He knew Hlophe JP. In the circumstances, upon learning about the serious allegations, the first thing he should have done was to pick up the telephone and asked him to come to the Court because he needed to discuss something with him. He ought to have got Hlophe JP’s side of the story before going to the media with untested allegations. In reality, what had happened was “I had a call from the Chief Justice. It was 11:40 on a Friday. I was having tea with my colleagues. I obliged. I rushed to my chambers. He told me that there is a complaint against me. I asked him: ‘Who is complaining against me?’ He said: ‘All [the] Judges of the Constitutional Court.”
  1. It was pointed out to Hlophe JP that the CJ and the DCJ denied his allegation that they had acted with an improper motive. He was asked if he was prepared to give them the benefit of the doubt but still maintain that they could have handled it better. Hlophe JP said it was the manner in which it was handled [that was problematic]. The DCJ was officially on long leave when the Zuma/Thint matters were heard. For him, the Zuma/Thint matters were “sensitive” given the remarks he allegedly made at his 60th birthday [party].
  1. Hlophe JP said when the DCJ did not sit in the Zuma/Thint cases, he thought that was the proper thing for him to do as a lawyer. However, later when allegations of a serious nature were made against Hlophe JP, the DCJ was heavily involved.  He was the one who was convening meetings, telephoning Jafta JA, and Nkabinde J.  Hlophe JP said if the DCJ could not sit in the Zuma/Thint matters because of the comments attributed to him, there was no reason for him to get involved, especially since O’Regan J was acting as the Deputy Chief Justice. He said the DCJ had no business to be involved.
  1. Hlophe JP said that in addition one had to consider whether he had filed his own complaint on 10 June 2008.  On 12 June 2008 there was a public statement jointly issued by Nkabinde J and Jafta JA saying they were not complaining. Then several meetings were held. A meeting was convened on 13 June, but the two judges were not present. According to the records, when Jafta JA asked if the meeting would have official consequences, the DCJ replied that it would have official and unofficial consequences.
  1. In response to a question, Hlophe JP confirmed he said that they had “political motives”. That he said, was clear from the email list of persons to whom the public statement was sent, on being the Democratic Alliance and was not sent to other political parties. The Democratic Alliance, he said, had been very vociferous in the Western Cape on all matters involving him.
  1. Hlophe JP conceded he had no direct evidence that they had acted with an improper motive, “But all I’m saying is that an inference is irresistible.” However, he said that he accepted that there is a presumption of judicial integrity.
  1. He confirmed that he asked Jafta JA if he could meet with him because he wanted to ask about his experiences in the Constitutional Court because he was aspiring to make himself available for that Court if a vacancy arose. (This was evidence given by Jafta JA in April 2009.) He said that Jafta JA was aware of his expertise and interest in constitutional law.
  1. In response to a question, Hlophe JP said he did not ask Jafta JA whether or not the judgment had been delivered.  He was aware that judgment had been reserved and that they were working on it.
  1. Hlophe JP said that Jafta JA’s evidence that he told him the matter had to be looked at properly because Mr Zuma was persecuted just like he was, was taken out of context. What happened was that Jafta JA asked him how he was feeling in the Western Cape.  Hlophe JP told him that whatever he did in the Western Cape he would always be wrong.  There would always be someone to report negatively on him.  But did not say that the matter must be decided properly in the context of saying Mr Zuma was being persecuted like him.  The context was the uncertainty which he believed was created by the narrow majority of the Supreme Court of Appeal on the issue of privilege.
  1. He denied Jafta JA’s further evidence that the Supreme Court of Appeal got it wrong. He rather expressed his concerns about the Supreme Court of Appeal judgment.  Hlophe JP accepted as correct the statement by Jafta JA that sesi thembele kinina”, loosely translated to mean “you are our last hope.” He said he used the expression, sesi thembele kinina, as he was leaving, basically encouraging him, meaning the onus is on the Judges of the CC to clear up the confusion.  He said that was the context in which he used the expression.
  1. Responding to Jafta JA’s further evidence that he told him that the matter was going to be decided on its facts and the application of the law on those facts and that he then changed the subject. He said there were many things they talked about. He said some things were taken out of context. The conversation lasted for an hour and a half.  Among the many things they had talked about were their families, their experiences at UNITRA, and when they were both Heads of Court.  Hlophe JP rejected the impression that was created that when he said “sesi thembele kinina”, “Zuma is being persecuted”, “decide the case properly” he then left.  He said that that was not how events had unfolded.  The discussion lasted an hour and a half without Jafta JA raising any concerns.
  1. The following was then put to him that Jafta JA had not actually put it that way.  He in fact said that after talking to him, he did not form the impression then that he had been trying to improperly influence him. It is only at a later stage when he heard about his visit to Nkabinde J that he thought that Hlophe JP might have been trying to improperly influence him.  Asked if there was anything in words or deeds which might have suggested to Jafta JA that he attempted to influence him to give judgment in the Zuma/Thint matters in a particular way, he said “absolutely no”.
  1. Turning to the evidence of Nkabinde J, Hlophe JP denied that when he telephoned her on the 23 April 2008 he told her he had a mandate. He added that it was not without significance that she did not ask what the mandate was for or who had given it. In addition, when she testified about the meeting of 25 April 2008, she did not ask anything about the mandate.  Hlophe JP said that he used the word “mandate” when he told her that a mandate had been given to him by the CJ to chair the Local Organising Committee.
  1. He denied telling Nkabinde J that the reason he was there was to raise a concern that people who are appointed to the Constitutional Court should understand their history.  He also denied telling her that he has connections with some Ministers whom he advised from time to time.
  1. He admitted that he told her that Mr Zuma’s case was an important case and that the issue of privilege was also important. However, he denied that he said that it must be decided properly in favour of Zuma because the prosecution’s case rests on that. But he did tell her that Mr Zuma was being persecuted, just like him. He had also told her that the issue of privilege was an important one for a trial lawyer or a trial judge.
  1. Evidence given by Nkabinde J was then put to Hlophe JP that when he talked about the Zuma/Thint cases, she snapped and told him that he knew he could not talk about the case [because] he had not been involved in the case, had not sat on it and was not a member of the Court; that his response was that he had not meant to interfere with her work but had gone on to explain that the point was that there is no case against Mr Zuma, Hlophe JP’s denied all of these and responded “She could never have said that to me because we never spoke about the facts in the Zuma matter. She could never have rebuffed me because we did not speak about the Zuma matter. The facts as they were before their Lordships, we did not speak about that.”
  1. He admitted that that he had said that Mr Zuma had been persecuted, just as he had been persecuted. But that had been said when she had asked him if his problems had subsided in the Western Cape. He said that he had simply said: “Well, I’m like Zuma“. He believed he had said in Zulu “nyamana mbana”, there will always be something wrong with him, wherever he was in the Western Cape.
  1. Hlophe JP also denied that he told Nkabinde J there was a list containing names of people who were also implicated in the arms deal; he had obtained the list from National Intelligence; or that some of the people on the list were going to lose their jobs when Mr Zuma became President. He said he had no connection with National Intelligence.
  1. He said that he had not said anything to Nkabinde J which could have given her the impression that he wanted her and other Justices of the CC to decide Mr Zuma’s case in a particular way. He also said he did not have any motive or intention to improperly influence the two judges to give a decision in favour of Mr Zuma.
  1. In answer to questions from Mr Semenya, Hlophe JP “wholeheartedly” accepted that any person who held a belief that there had been some judicial impropriety had the right to report that to Commission. But he contended that the manner in which the process had been initiated made this case very different. He said: “I was lynched publicly because of how my colleagues in the Constitutional Court treated me and despised me and humiliated me.”

  1. Hlophe JP accepted that a complainant could legitimately make the report to the Commission based even on a rumour. But he said there was a difference between the right to report an accused judge to Commission in an appropriate way and following appropriate rules. “But what happened in this case [is that] they went public on untested allegations, before I was reported to the JSC. It took no less than two weeks before they could properly report me to the JSC. In fact, according to the judgment of Mojapelo J, for 17 days I was being lynched. And that was caused by my colleagues directly.”
  1. Based on the information, he accepted that the Judges of the CC had the right to report the matter to the Commission. He said he did not quarrel with them in so far as they exercised their right to report him to the Commission. His problem was the manner in which it was done.
  1. He accepted that he had not been privy to the conversations of the Judges of the CC and that apart from what had been said in the papers he had not been informed who had said what and to whom. He said that the conclusion that he had drawn that they had been actuated by political considerations in lodging the complaint was just an inference. But it was based on the following. First, the mail list which included journalists [and newspapers] including the Mail and Guardian and also the Democratic Alliance, a political party. Second, the subsequent conduct in which there were off the record or without prejudice discussions that he should quit the Bench and take monetary compensation. All this indicated one thing to him: this was a campaign to get rid of him.
  1. Asked if he conceded that his inference may be incorrect, he said “Yes, I would concede that, but then contend that on these facts, I think the inference, with respect, cannot be incorrect, on these facts.”

  1. He accepted that there was an explanation on how communications from the Constitutional Court were disseminated generally. But he said he did not find it convincing.
  1. He did not concede that the inference he was making may possibly be misplaced. He said he would not make that concession “on these facts”, the subsequent conduct and the offer that he must take money and leave the Bench. These strengthened the inference he had made earlier on.
  1. He accepted that though he had given a particular meaning to the expression sesi thembele kinina, it could have been understood differently, if one took the literal meaning of the word “ukuthemba” which means trust or hope. But he emphasized that he had not used it in conjunction with the expression “Zuma’s case must be decided properly, sesi thembele kinina”.
  1. Asked if he thought that it was proper to discuss a matter with a Judge when it was still pending, he said that they had not gone into the details of the Zuma/Thint matters. They had not talked about the facts. But he said, with his 15 years’ experience on the Bench, he did not see anything improper in talking about principles of law of a general nature. They had not talked about the specifics.
  1. He accepted that in terms of the record the practice at the Constitutional Court is that even judges who are seized of a matter do not discuss it before a hearing except in certain instance such as the admission of an amici. Hlophe JP’s answer was “[T]o the best of my knowledge, Constitutional Court judges are no different to other judges. No doubt they would talk about their cases. I have reason to believe that they would also talk to academics about their cases. And I don’t think there is anything wrong with that because it is intellectually stimulating. One doesn’t discuss something with a colleague or an academic in order to get an answer in a particular way but just to enrich yourself intellectually. I don’t think there is anything wrong with that. If anything, I have reason to believe that they do discuss matters, either among themselves even before the judgments are delivered or with fellow academics, with academics in the country. And I don’t see anything wrong with that.”

  1. Asked pointedly if he knew the strict practice of the Appellate Court and the Constitutional Court that judges do not discuss matters except in circumscribed circumstances, he said “No, I did not know that at all. I come from the High Court background, we talk about our cases. And ultimately the judge who is going to write the judgment, it is his responsibility. You can’t say I’ve been told by Professor so-and-so that this is the answer. It becomes your judgment at the end of the day. But there’s nothing wrong with a dialogue which is intellectually stimulating with a colleague, which is what took place in the chambers of those learned Justices.”

  1. Asked if he had expressed any opinion about the strength of the case or its weaknesses, he said he had not. It was put to him that the Judges of the CC said their conduct was inspired by their desire to protect the institutional integrity or the constitutional integrity of the court. Asked if he accepted that was a legitimate basis to explain their conduct he said “I would expect that if such serious allegations are made against anybody, be it me or anybody, it will be a matter of concern. But the question is, how do you move on from there? That’s an entirely different aspect altogether. Concern, yes, I have no problems. But how do you address the concern, that’s where my problem starts.
  1. However, he said that he accepted as legitimate the explanation offered by them that their conduct, at least of reporting the matter to the Commission, had been actuated by their desire to protect the constitutional integrity of the court. Asked if he was offended by the fact that the statement had been published before he had been made privy to it he said: “That’s one of the things I found offensive, namely that clearly they sat as a court and decided that I was guilty without even affording me a hearing, then went public on untested allegations. I was lynched and insulted because of their conduct.”
  1. The chairperson then said “I just want to clear up something for the purpose of the record. Judge President Hlophe has twice or thrice referred to the issue of a certain amount of money, I think R10-million. I think it would be proper to place it on record that that particular issue was not before the hearing last time and in fact the Commission ruled that that issue should – it would be improper to get into that particular issue. I think we should clarify that. And I think it’s still the view of the Commission.”

SUMMARY OF EVIDENCE OF JAFTA JA ON 30 JULY 2009

  1. Jafta JA confirmed that towards the end March 2008 Hlophe JP visited him at his chambers in the Constitutional Court; there were certain discussions between them; and on 12 June 2008 him and Nkabinde J made a statement, which had been referred to as a joint statement by them, in which they indicated their reluctance to make any further statements.
  1. Asked why he was reluctant to make any statement, he said one reason was that he considered it undesirable for judges to be placed in a position where they might have to give evidence in matters relating to factual determinations.  The second reason was that the matter was unprecedented. It was difficult to deal with. In addition, Hlophe JP was his friend. Third, he considered later that whatever impropriety might have arisen at that stage, he had rebuffed it.
  1. He was asked to respond to suggestions that the CJ and the DCJ brought improper pressure to bear upon him in order to change his stance from being reluctant to make a statement and subsequently joining in a joint statement five days later on 17 June 2008. He said: “Well, at the stage when we received the letter from the JSC requiring a detailed statement relating to the complaint to be made, as at that stage I understood the letter to be saying myself and Judge Nkabinde were the complainant judges, which was not correct. We were not the complainant judges; the complaint was laid by the entire Court through its judges. And at that stage, it had not become clear in my mind that one has to separate a complaint on an individual basis by those who were approached and an institutional complaint by all the judges.  It only became clear in my mind during the meeting of the 16th of June that the complaint that was being pursued as at that stage, it was a complaint, a collective complaint by the Court as an institution and therefore, having been a member of that Court at that time, I associated myself with the rest – the members of the Court.
  1. Asked if he was pressurised by the CJ and the DCJ to subsequently associate himself with the complaint, he said: “No, I was not.”
  1. Asked about their friendship he said “[W]e met, I think it was in 1988 or ’89, as lecturers at the University of Transkei. He was the Head of Department, I was a lecturer in the Department of Constitutional Law. We became friends and our wives also became friends and we kept contact, even after he was appointed [a Judge] in Cape Town. And in 2001, when I became an Acting Judge President of the Transkei Division, we met quite often at the Heads of Courts meeting. So we are close friends in that sense.”
  1. Asked whether there had been a history of sharing any legal intellectual debate, he said “Well, there has been that sharing, initially at the stage when we were lecturers. After we became Judges, we would talk generally about legal topics when we meet. But from the time I went to the LAC in 2003 I think, we did not meet until he visited me at the Constitutional Court last year.”
  1. He said that the meeting in March 2008 was in itself not unusual. However, what was unusual was the discussion that had taken place during the meeting which related to a matter in which judgment was still pending.
  1. He confirmed what he had said in his earlier evidence that it had been unusual because it is not practice, as he knew it, in his Labour Appeal Court, Constitutional Court and his Supreme Court of Appeal experience, that judges not involved in the adjudication of a particular matter discuss it with other judges.
  1. Asked if he accepted what Hlophe JP had said, namely, it was not a practice he (Hlophe JP) was particularly familiar with. He responded: “Well, I would because I am not quite sure whether he has sat in the LAC or whether the practice was that in the LAC at the time he sat, if he did. Certainly he has not sat in the SCA, he has not sat in the CC.”
  1. He accepted the correctness of following propositions, which seemed to follow from his earlier evidence: at the end of the meeting he did not find Hlophe JP’s conduct sufficiently objectionable to merit a complaint; it was only after his discussion with Nkabinde J that he had reflected on Hlophe JP’s conduct and their meeting; and it was only at that time that he came to the view that Hlophe JP’s conduct may be improper.
  1. Asked if he accepted the possibility that there may be another view on the conduct of Hlophe JP, he said “Well, I cannot exclude that possibility.
  1. He was told that Hlophe JP’s evidence was that he had had no intention to influence the outcome of that case. He was asked if he had reason to doubt that. He said “Well, one can only work on an inference. I would really not know what intention he had. One has to look at the facts of a discussion and draw an inference.
  1. He said that there had not been a point at which he had communicated to Hlophe JP that his conduct was causing him concern. Asked if he at any point came to the conclusion that he would tell Hlophe JP as a friend, that Hlophe JP was crossing the line. His answer was Well, firstly, I didn’t expect it to come up. Secondly, I thought perhaps there is no malice behind it. And for me it’s just to move away from the discussion after giving my response to what he was saying. And as a result, we changed the subject.”
  1. Mr Moerane then put to him that if one looked at his statement, the joint statement of all the Judges of the CC and the evidence that he gave at the hearing in April 2008, one gets the impression that at the end of March 2008 he did not form the impression that Hlophe JP was trying to improperly influence him to arrive at a particular decision.  He responded that he had not formed that impression.

SUMMARY OF EVIDENCE OF NKABINDE J ON 30 JULY 2009

  1. Nkabinde J confirmed the correctness of the evidence she previously gave and the correctness of the joint statement with Jafta JA.
  1. She confirmed that she heard what Hlophe JP had said in relation to her meeting with him. Asked if she wished to comment on any aspect of his evidence, she said she had confirmed the statements under oath that were before the sub-committee and she confirmed her previous evidence before the Commission (on 8 April 2009).  She further said I must say that I hear the Judge President saying that he did not say to me that the case of Mr Zuma must be decided properly. I join issues with what he is saying. I maintain what I have said already, which is before you. I did not initiate a discussion about the issue of attorney and client privilege, as I indicated in the record which is before you already. I had no reason whatsoever to initiate such a discussion at all. As I indicate in the record, the Judge President phoned – he confirms that. He denies that I mentioned – he mentioned that he said he had a mandate when he called me. I join issue with that. The Judge President called and said he had a mandate when he made an appointment with me. That evidence is before you already.  At that stage when he called, on the 23rd, he also mentioned in Zulu something to the effect that he’d also like us to talk about the issue of privilege. As I indicated earlier when I testified, I didn’t attach much to that at that stage.  You would have realised, Mr Commissioner, that on the 24th of April I had a meeting with Judge Jafta. I told Judge Jafta that Judge President Hlophe will be coming to see me on the 25th. And he indicated to me that I must be careful because he could be coming to talk about the case of Mr Zuma. I admit, I agree that we met that same night at the function and we confirmed our meeting and he came the following day. To the extent that what he says differs with what I have said on the record when I testified, I join issue with that, that is not correct.  But allow me, Mr Commissioner, to say I would have had no reason whatsoever to mention a case to Judge President Hlophe, as I indicate, that he did not sit in. I’ve never discussed a case with a judge before, let alone my colleagues at the Constitutional Court, about a case that I’m handling. There would have been no reason whatsoever for me to discuss a case that is pending with a judge who is not even a member of the Court.  Let me also say that I expressed my disquiet, in fact I rebuffed him when he started talking about the case. That evidence is before you, I need not elaborate on that.  Let me also say it is correct, I had written a note on privilege. Judge Hlophe says today that I told him that I was busy writing a note on privilege. I have already indicated to this Commission that that is not true, it could not be true. That note was long written, was long circulated, was commented upon by colleagues. Therefore it is not possible at all that I could have said that I’m busy writing a note on privilege. The note was circulated on the 1st of April 2008. For what it is worth, if it’s necessary, I have documentary proof of a note that has been retrieved on computer to prove that that note was circulated on that day. If this Commission requires that covering note, I have it available.  The long and short of this is that I join issues with what Judge President Hlophe is saying to the extent that it differs with what I have said under oath before this Commission and under oath in my statements.”

  1. Asked whether he had explained what the “mandate” was she said “When he mentioned on the phone that he had a mandate, I did not know what mandate he was talking about. The man is making an appointment with you and says I want to come and talk to you about a mandate. I had no reason to ask him what the mandate was all about because he was coming any way.  He was going to come to tell me about these issues that he wanted to discuss with me. So there was no reason at all for me to ask him questions about it.”
  1. She agreed that the word would have had an inculpatory tone if it had been intended to convey that he had instructions from the President of the country, etc. She also agreed that it would have had an exculpatory tone if it was conveying that he had a mandate from the CJ to do matters judicial.
  1. She also agreed that the reference to the Zuma/Thint matters, in conversation with her was very brief. She said that this was because as soon as he had mentioned the Zuma/Thint matters, the issue of privilege and that the matter should be decided properly, she snapped. This is what Jafta JA had warned her about. So she told Hlophe JP that he knew that he could not discuss the case. Hlophe JP said he was not interfering.
  1. She said she harboured a suspicion that his raising the matter was ethically wrong and that is why she stopped him. Asked if at the time she had reason to believe that he had an improper intention in raising the debate on the matter, she said “Well, at that time I didn’t think about that. I was just thinking about what was happening that, look, this is improper. So I could not have thought about whatever intention that he might have had.”

  1. She said she heard Hlophe JP’s evidence that he had no intention of influencing the outcome of the case. Asked if that was possible, she said “I don’t know, I don’t know what his intentions were. She agreed however that it was for the Commission to determine if there was any judicial impropriety.
  1. She said there was no pressure on her to join in the complaint.  She thought it was an insult for anybody to suggest that a judge can be influenced by another judge. She said she was not influenced by anybody: she could not be influenced by anybody.
  1. She confirmed the evidence she gave in April that Jafta JA had warned her that Hlophe JP might raise the Zuma/Thint matters with her. Consequently, when Hlophe JP raised that issue with her, she immediately stopped him: she “snapped”. She confirmed too that she in fact said the following to him; “My brother, you know that you cannot talk about this case, you have not been involved in this case, you have not sat on it and you are not a member of the Court to come and talk about the case”. She further confirmed that his response was that he did not mean to interfere with her work and he went on to explain that the point was that there was no case against Mr Zuma and said further that Mr Zuma had been persecuted, just as he was persecuted.
  1. It was put to her hat Hlophe JP did not actually get to a point where he was persuading her to hold in a particular manner in the case involving Mr Zuma.  She responded “When Judge Hlophe spoke to me he talked about the case of Mr Zuma, saying that the case must be decided properly. And when he started talking about the issue of privilege, that it’s an important aspect of the case and that the prosecution case rested on it, I snapped and stopped him there. And in the context of trying to answer, I suppose, me, he was explaining why he was talking about the case, I guess. And he was explaining why he was doing what he was doing, saying that there are other people who are implicated in the arms deal, there’s no case against Mr Zuma and he went on to talk about the list of the people who had been implicated.”
  1. She was further asked whether Hlophe JP, for instance said to her, “…you have to decide this case in a particular way?” She answered “He said the issue of the privilege must be decided properly. He didn’t say decide in this particular way.

SUMMARY OF EVIDENCE OF MOSENEKE DCJ ON 30 JULY 2009

  1. The DCJ was asked by the Chairperson to deal with the issue of possible motive.
  1. The DCJ said he was on sabbatical on the 30 or 31 May 2008.  A few days before he went to the office he was informed about the incident. On 1 June 2008 he returned to his post as Deputy Chief Justice at the Court.  Acting DCJ, O’Regan J, had ceased to hold that office.  As it was a few days before he was asked to resume his term, it was natural that O’Regan J would come to him to hand over a number of matters and this was one of the matters that she raised with him.
  1. He took his position as Deputy Head of the Court and his oath of office seriously.  Once he came to know what transpired, as conveyed in the “evidence” of Jafta JA and Nkabinde J, he knew that he bore a responsibility to investigate the matter internally. He thought prima facie there was an actionable complaint and was seized with the matter to take all such steps as are necessary.
  1. He stated that he and the CJ discussed the matter and the CJ asked him to convene a meeting in his chambers.  Consequently, the suggestion that he was acting on a frolic of his own was totally without merit.  On that occasion they talked to the two judges concerned.  When he and the CJ had carefully listened to them they were satisfied that there was a complaint to be lodged with the Commission.
  1. They took that view irrespective of whether or not Jafta JA and Nkabinde J would have taken the view that they would not like to make a complaint.  Once the issue reached them they had an obligation to bring it to the surface and to ensure that it was heard by the Commission adjudicated upon.
  1. The DCJ stated that it was deeply unfortunate that Hlophe JP made the kind of inferences he had made 14 months ago and repeated earlier on that day.  He hoped that he would have the bigness of heart to concede that it was a mere inference not premised on any fact, it was a deep and serious attack on his integrity and that of the Chief Justice and of all his colleagues who had debated the matter and concluded that there was a complaint.  He said he took unkindly to that attack.  He said their role was limited to that of a complainant.  The Commission’s task was clear: to evaluate the facts and would, as they had always done, abide by its decision. Further, the suggestion that there was an attempt to impeach anybody was deeply unfortunate and had no basis.
  1. He said Hlophe JP said he had been acting on some political motive. The DCJ dared him to put that motive on the table with proper facts that would compel him to deal with them.  He pointed out that he was in his ninth year as a Judge and did not “dabble” in political motives.  He said it was unfortunate that these unsubstantiated suggestions were being persisted in even at “this late hour”.  He added: “I would hope his career flourishes. He’s a young man, I’ve been in this career for 35 years, and I hope it flourishes and meets his best aspirations. But I’ve no cause to want to act improperly. I’ve always tried to act at the height of my sincerity in my judicial function.”

  1. Regarding political motive, he was asked to comment on the distribution of the statement to inter alia the Democratic Alliance.  He said this was already explained. Media statements at the Constitutional Court are issued by the Court electronically and these entities subscribe to the Constitutional Court electronic distribution list. On any one day about five/six distributions are done by the Registrar on her own motion. Anybody who applies gets added onto the list and they receive regular distributions. Many advocates are on the list, so are many courts in and outside South Africa, social movements, NGOs and some political parties. He did know who else it would have been distributed to or even whether the Democratic Alliance was on the list.  He said “The Registrar ran the distribution process. The Registrar invites people, entities and organisations to subscribe to the service and the Registrar does the distribution. All that the judges do would be to formulate something or to require something to be distributed and it’s distributed in accordance with the electronic distribution list.
  1. He said that the Judges of the CC took the view that if the facts put before them emanating from Jafta JA and Nkabinde J were true, it would constitute gross misconduct, which therefore was reportable to the Commission, which would be the ultimate arbiter of that collection of facts and applicable rules.
  1. He said they were aggrieved that two of their colleagues had been approached in a manner which suggested a desire to influence the way they do their work and that was the crux of their concern.

  1. Explaining why the media statement was issued before Hlophe JP had been given an opportunity to respond, he said they collectively considered that the integrity of the adjudication process, and therefore the very independence of the Constitutional Court was being threatened.  They did not discuss cases until the appropriate moment when they made decisions at conference. Consequently, if somebody from outside the Court sought to raise issues on a pending matter with one of their colleagues – it being a collegial court where decisions were made collectively – there could well be contamination with discussions that emanate from those who may have been influenced. They therefore saw this as a threat to the adjudication process, which was the very reason the Court is there. Virtually all the Judges of the CC felt that it was imperative that the matter be referred to the Commission. They took seriously the constitutional values of openness and accountability. It was important for them to reassure the public by letting them know of the complaint. Otherwise it would be dogged by rumour.  In addition because there were litigants, they did not wish to allow any rumour to circle around the case and it was better to have an open process. As complainants, they felt they had a duty to make known the steps they were taking.
  1. Asked why Hlophe JP was not given the opportunity to speak to them before releasing the statement he said that the CJ had done that. He agreed that there might be a debate about whether the time given had been adequate, but stressed the value that they attached to openness.
  1. Mr Moerane then questioned the DCJ. He said that Hlophe JP’s complaint did not so much relate to the fact that a complaint was laid with the Commission, about which he was informed. Rather it related to the publication of the media statement, of which he was not informed or warned. He said that as complainants they were duty bound to let the public know of the occurrences in respect of which they had lodged a complaint. However, Hlophe JP had to first be told of this. And, he was. But the Judges of the CC took the view that they had no duty to facilitate audi rights: that obligation rested with the Commission. Consequently, entering into an enquiry with Hlophe JP meant their evaluating his version against that of Nkabinde J and Jafta JA, whom they believed. They took the side of their colleagues because they accepted what they were told by them at face value, subject to a factual determination by the body charged with the function.
  1. He rejected the allegation that he and the CJ had brought improper pressure to bear upon Jafta JA and Nkabinde J to change their stance from initially a reluctance to complain or be complainants, to that of associating themselves with a complaint of all the Judges of the CC. He denied that he and the CJ had acted with any ulterior motive. He said that the two judges told them that they were reluctant to be individual complainants. But they were willing to be complainants with their colleagues. His stance and that of the CJ and the other Judges of the CC was that once they heard what happened, they had to report the matter. Whether or not there was evidence ultimately to back it would have to be determined by the Commission.
  1. He rejected the allegation that the CJ masterminded leaks to the public in a well orchestrated media campaign as another “sad and unfortunate accusation”.
  1. He agreed that as complainants the Judges of the CC did not intend to make a determination that the alleged conduct was impeachable conduct. But he added that if the allegations were true it would constitute “gross misconduct”. He accepted however that if there was a proper explanation of the facts as a totality it could well meet the prima facie wrongfulness of the conduct. He also accepted that the Commission was obliged to listen to all explanations, including the intent of the person whose conduct was in issue.

SUMMARY OF EVIDENCE OF LANGA CJ ON 30 JULY 2009

  1. In answer to questions by Mr Moerane, the CJ confirmed that he compiled, on behalf of the Judges of the CC, the statements dated 17 June and 4 July 2008, in response to the counter-complaint by Hlophe JP and gave oral testimony to the Commission on 7 April 2009.
  1. He categorically denied the allegation made by Hlophe JP: that he had ulterior motives, in particular in issuing or being party to the issuing of the media statement on 30 May 2008; and that he masterminded leaks to the public in a well orchestrated media campaign. He said he was Chief Justice of, and the Head of the Judiciary, in South Africa.  Hlophe JP was the Head of one of the divisions and a member of the Judiciary. He said he was intensely sensitive to what happens to the Judiciary, in particular the dignity, integrity and esteem in which the Judiciary should be upheld.
  1. He said that he had no motive at all to damage any aspect of the Judiciary and in this particular case had no motive to damage the Judge President.
  1. He wished to repeat that once he became aware of the allegation and what had happened, he had no chance but to take the matter forward. He and the DCJ are the leaders of the Judiciary. We endeavoured to deal with things transparently, particularly where they affect public interest.  If it were to emerge later that they swept something like this under the carpet it would have caused enormous damage. They saw it as their duty to deal with the matter promptly, to report the matter to the body which has the powers to investigate and that is what they did.
  1. In respect of the accusation of political motive, he said he did not know whether the statement was sent to the Democratic Alliance. He had looked at the complaint but could not find any proof that the statement was sent to the Democratic Alliance.
  1. He also emphasized that a complaint such as this would not be taken lightly by himself and his colleagues. It was a very serious complaint and the act of lodging it was also a very serious matter. They were painfully aware of that and the lodging of the complaint was not done lightly.  They were required to deal with the matter for the integrity of the institution and of the Judiciary itself.
  1. He was asked by the Chairperson whether or not the time between the release of the media statement and the telephone call to Hlophe JP was sufficient. He said he had previously testified on this matter and his answer was identical to that of the DCJ when he testified earlier.
  1. He said the question was whether the complainants were to expect a response. The decision having been taken to refer the matter to the Commission, informing the Judge President to expect the complaint and informing him about it was not going to stop the complaint from being lodged with the Commission. Once it was lodged, there was not much point in calling for a response: the Commission would do that. The media statement was released and the complaint was lodged on a Friday, things had to be done, and the Commission had to receive it and so on.
  1. The sub-committee heard the evidence of the CJ, the DCJ, Nkabinde J and Jafta JA who substantially confirmed the evidence they gave on 7 and 8 April 2008.

ASSESSMENT OF THE COMPLAINTS

  1. The relevant evidence that was before the Commission has been summarised above – fairly comprehensively. In assessing whether the respective complaints established gross misconduct on the part of any of the Judges, we considered first Hlophe JP’s counter-complaint. Thereafter, we considered the complaint by the Judges of the CC against Hlophe JP. We deal with our assessment in the paragraphs hereunder.
  1. In respect of the counter-complaint, it has already been pointed out that the Supreme Court of Appeal has held that what the Judges of the CC did was not unlawful.[22] It may have been an infringement of the principle of collegiality or comity among judges or some ethical principle, but, in our view that cannot amount to gross misconduct.
  1. In our view, there is no reasonable possibility that the Commission will find that the Judges of the CC, including Jafta JA and Kroon J, are guilty of gross misconduct. It could be argued that it was perhaps unwise or imprudent for the Judges of the CC to have published the media statement of 30 May 2008. In this respect we particularly take into account that what these Judges normally say in the course of their official functions and duties is accepted by the public as a true statement of the law. Although the statement that they issued was not a judgment, it carried the weight and authority of that Court, particularly when all the Judges of that Court joined in the statement.
  1. The Commission observes and is bound by the principle that the particulars of any complaint against any Judge and his or her identity, at the initial stages of the investigation thereof, should generally be kept confidential. We believe that is a salutary rule aimed at protecting the institution of the judiciary rather than the individual judges. But, having said that, we do not believe that the Judges of the CC are guilty of gross misconduct.
  1. In our view, the allegations by Hlophe JP  – that the Judges of the CC, in particular the CJ and the DCJ, relating to ulterior motive to get him at all costs; bringing undue and inappropriate pressure to bear on Nkabinde J and Jafta JA to act contrary to their conscience in order to achieve judicial solidarity by false pretences; the concealment of the complete and true facts in a hell-bent attempt to maintain a veneer of judicial solidarity; acting with a political motive; masterminding leaks to the media in a well orchestrated media campaign – are as unfortunate as they are incapable of establishment on the basis of all the evidence before us. They should not have been made without proper proof. It is clear from the evidence of Hlophe JP to the sub-committee that he based his allegations almost entirely on conclusions and inferences that he drew from what they had said and done on various occasions. The CJ and the DCJ emphatically deny the conclusions and inferences. We accept the denials.
  1. Furthermore, it is significant that in the written submissions made by Newdigate SC and his juniors on behalf of Hlophe JP, these allegations are not persisted with. Moreover, Hlophe JP is not calling for a formal hearing on the counter complaint. It is submitted on his behalf “that the JSC should determine the counter-complaint on the material already before it”.
  1. In the result, there is no basis for finding that any of the Judges of the CC is guilty of gross misconduct. We point that, although we do not believe that it does, it is not necessary for us to pronounce on whether the publication of the fact of the complaint in the circumstances in which it was done constitutes an act of misconduct.
  1. In the premises we came to the conclusion that the counter-complaint should be dismissed, and we did so.
  1. We turn now to the complaint by the Judges of the CC against Hlophe JP. The case rests essentially on the evidence of Jafta JA and Nkabinde J. It thus becomes necessary to carefully analyse their evidence. At the outset, for the reasons set out in the paragraph immediately hereunder, we find that the evidence of Jafta JA standing alone is not sufficient to establish that Hlophe JP attempted to improperly influence him to decide the Zuma/Thint cases in a particular way.
  1. On 30 July 2009 Jafta JA made concessions that, to say the least, did not advance the case of the Judges of the CC. It appears that, short of inferences and comment, what Hlophe JP said to Jafta JA, who it is common cause was a friend, is the following: the Zuma/Thint matters should be decided properly; Mr Zuma has been persecuted just as he [Hlophe JP] has been; the Judges of the CC are our last hope (“sesithembele kinina”). He conceded that Hlophe JP may not have intended to influence him improperly. The only reason why he, a month later, thought that Hlophe JP had been trying to influence him improperly was because of what Nkabinde J had said in her report to him concerning Hlophe JP’s visit to her.
  1. Nkabinde J’s evidence appears to pose more challenges for two reasons. First, there are several contradictions between her evidence and that of Hlophe JP. Their versions on certain matters are irreconcilable. Clearly, the version of one of them on those disputed issues is not correct. However, the important question that arises is whether the contradictions are on material issues. The second issue is the precise import of her evidence. What does she say Hlophe JP said that constitutes an attempt to improperly influence her to decide the Zuma/Thint matters in a particular way?
  1. Regarding the first issue, her evidence conflicts with that of Hlophe JP on several matters. Among them are the following. Who introduced the discussion about the Zuma-Thint cases?  Who initiated the discussion on the issue of privilege? Whether Hlophe JP said he was well connected and had a mandate [other than to chair the LOC]?  Whether he said the Zuma/Thint matters had to be decided properly?  Whether Nkabinde J snapped and said that Hlophe JP should not talk about the Zuma/Thint cases as he was not involved in the case? In our view, however, the issues on which there are conflicts do not appear to have a material bearing on the central question that we are required to consider:  did Hlophe JP attempt to improperly influence Nkabinde J to give judgment in a particular way against her conscience or better judgment?  Looking at her evidence in totality she does not say that Hlophe JP told her this. It appears to be an inference or conclusion that she drew. We are bound to conclude that Hlophe JP did not tell her how the case should be decided. We say that because when that was expressly put to her by Mr Moerane at the investigation by the sub-committee she denied it. She said: “He didn’t say decide in this particular way.
  1. It might be convenient to address at this point a submission made by Mr Marcus and his junior, in their comprehensive submissions to the Commission.  They submitted that on the evidence available before the Commission, including what Nkabinde J and Hlophe JP had said, a case of gross misconduct has been made out. We do not accept that submission. We do not accept that in the actual circumstances in which the exchanges took place it would constitute gross misconduct to say that the issue of privilege is a concerning one, that it must be decided properly or to express strong views on the matter. We must stress that the complaint was that Hlophe JP had attempted to improperly persuade her and Jafta JA to decide the cases in Mr Zuma’s favour. We do not find that, on the evidence of Nkabinde J and Jafta JA, together with what Hlophe JP said, such attempt has been established, or could reasonably be established at a formal enquiry. We accordingly do not find that Hlophe JP is guilty of gross misconduct.
  1. However, it was submitted by Mr Marcus that, if the evidence before the Commission is not sufficient to establish gross misconduct, the matter should be referred to a formal hearing to establish if there was gross misconduct. We deal with that issue hereunder.

  1. In determining whether there is a need for a formal hearing, we are alive to the fact that the witnesses in this matter are senior judges and eminent jurists in their own right who were ably assisted by competent legal representatives in the presentation of their cases in support of the complaint and the counter-complaint.
  1. May we pause for a moment and reflect on the procedure used to amplify the complaint of 30 May 2008. Although having the CJ relate in writing the events that did not occur in his presence was a permissible way of making a statement, as will be demonstrated hereunder, it is not the most satisfactory mode of doing so, given, in particular, the expressed reluctance of Nkabinde J and Jafta JA to make any statement other than the joint statement of 12 June 2008. Words and facts alter in narration. The narrator’s impressions, inferences and conclusions translate into fact, thereby creating room for error. Inevitably, crucial nuances are lost. It would have been preferable for the two Judges to have made statements in their own words. Extremely brief statements confirming what the Chief Justice had said they had heard, said and done, are not a particularly satisfactory way of recounting events.
  1. Regarding the complaint it is common cause that Hlophe JP met Jafta JA and Nkabinde J on separate occasions and in their discussions the Zuma/Thint matters were discussed.
  1. We also accept, for the purposes of our decisions, that in their conversations Hlophe JP in all probability said, among other things, that the Zuma/Thint matters must be decided properly; that privilege was an important element of the matters that were before the Court; that he used the word “mandate”; that he, like President Zuma (then President of the African National Congress) was persecuted; that there is no case against Zuma; that “sesithembele kinina”  – “we pin our hopes on you”; he believed that the issue of privilege was a very concerning one and had to be dealt with properly; he felt strongly about privilege and fair trial rights; that the majority in the Supreme Court of Appeal did not attach much weight to the issue of privilege; that the Zuma/Thint cases was probably one of the most demanding of cases that the Court had dealt with given its important to the President of the ANC, Jacob Zuma and the ANC itself and the country. We also accept that his discussion with Jafta JA was robust.
  1. Hlophe JP denies that he acted with an intention to improperly influence the decision of the Court in relation to the Zuma/Thint matters. In addition, he denies several aspects of the evidence given by Nkabinde J and Jafta JA.
  1. As already pointed out above, it was submitted by Mr Marcus and his junior that the complaint must be referred to a formal hearing in terms of Rule 5 of the JSC Rules where cross-examination would help resolve the various disputes of fact, the more important of which been mentioned above. It was submitted that cross-examination would help determine what Hlophe JP’s intentions were in approaching Nkabinde J and Jafta JA, to the extent that subjective intention was relevant. It would also help to resolve disputes about, among others, the following matters: the “mandate” that he had mentioned to Nkabinde J; whether he had acted with pre-meditation; whether, as alleged by Hlophe JP, Nkabinde J had disclosed that she was writing a pre-hearing note on privilege; whether Hlophe JP had told her he had links with National Intelligence; and the use and significance of the phrase “sesithembele kinina”.
  1. Mr Marcus also submitted that cross-examination following a referral to a formal hearing will resolve many of the disputes that emerged in respect of the counter-complaint. As indicated, we do not accept that the Judges of the CC have been guilty of gross misconduct. There is no need to refer the counter-complaint to a formal hearing. We decline to do so.
  1. We consider now the submission that the complaint be referred to a formal hearing in order to establish whose version should be accepted in respect of the issues in dispute referred to above.
  1. Whether Hlophe JP had intended to influence the decisions of the Court in the Zuma/Thint matters or not is an inference that the Commission will have to make, having regard to the totality of the evidence. We would be naïve if we believed that Hlophe JP will not persist in his denial that he had such intention, no matter how extensive or intensive the cross-examination on that point. We must realistically also accept that he will adopt the same stance in respect of his claimed links with the National Intelligence and the other matters on which there are sharp disputes of fact.
  1. In respect of the claim that he attempted to improperly influence the two Judges, we cannot ignore the following contentions made by Hlophe JP. First, if he had intended to improperly influence the two judges, one would have expected that he would have followed up after he had approached them. It is clear, from the evidence of the two judges that he did not. Second, it is known that Hlophe JP had on the two occasions that he was at the Court, also met with the CJ and Ngcobo J and had talked to the DCJ over the telephone. There is no evidence that he attempted to improperly influence them. It must be noted that decisions in the Constitutional Court, as in all our Courts, are taken by a majority. Again, it is significant that he did not attempt to influence any of the other Judges.
  1. There are several other disputes. By way of illustration, what Hlophe JP says he meant by “mandate” is that he had a mandate from the CJ.  Nkabinde J did not ask Hlophe JP what “mandate” he had or who gave the mandate.
  1. But the dispute over the use of the word “mandate” in our view is but one illustration of many on why the submission that cross-examination is unlikely to bring clarity on some of these disputes, whose resolution is in any case not absolutely necessary for our determination of the essential question posed above, namely is Hlophe JP guilty of gross misconduct in that he attempted to improperly persuade the two judges to decide the cases in Mr Zuma’s favour.
  1. Nkabinde J herself does not appear to be entirely consistent on the issue of the mandate. First, in the statement of the CJ, it seems that the word “mandate” was mentioned at the meeting of 25 April 2008. In addition, the report to Mokgoro J also seems to confirm that Hlophe JP had talked about his mandate in her chambers on 25 April 2008. In addition, however, Nkabinde J appears to have told Mokgoro J that Hlophe JP had simply told her “he had a mandate”. But in her report to the CJ and the DCJ, Nkabinde J says that Hlophe JP had told her “he had a mandate to act as he was doing”. In addition, when she testified before the Commission Nkabinde J made it clear that in the telephone call on 23 April 2008 Hlophe JP had simply told her that he had “a mandate” and they could talk about privilege. In addition, Hlophe JP did not say anything about the terms of the mandate over the telephone. Nor had he said from whom he had received the mandate. Moreover, she did not ask him about the mandate when they met on 25 April 2008. In fact she said in her evidence that in her chambers on 25 April 2008 nothing was said about the mandate he had spoken about over the telephone on 23 April 2008.
  1. In light of the foregoing, in our view, a referral to a formal enquiry is highly unlikely to take the matter of the mandate any further.
  1. It is our view that similar considerations obtain in respect of the other matters that we are told will be clarified by a referral to a formal enquiry. In the premises, we do not believe that much will be gained by referring the matter to a formal enquiry. What is significant is that there is no suggestion that there is other independent evidence available. Accordingly, after such a formal hearing we will have nothing more than what we already have, except what may be extracted in cross-examination. The material before us, we consider, is sufficient for us to make a decision on whether or not Hlophe JP is guilty of gross misconduct. It is highly unlikely that we will reach a different conclusion by referring the complaint to a formal enquiry. In that respect, we mention the matters in the paragraphs hereunder.
  1. We cannot simply ignore without attaching any weight to them the following further matters: the discussion between Hlophe JP and Jafta JA took place in March 2008 but Jafta JA did not find it sufficiently concerning to make anything of that discussion until Nkabinde J informed him that she was going to meet with Hlophe JP the following day;  Nkabinde J also did not raise the alarm about the conduct of Hlophe JP until nearly two weeks later when she first spoke to Mokgoro J; both Jafta JA and Nkabinde J, in their joint statement, disavow being complainants in their individual capacities relating to the complaint; they only associated themselves with the complaint as members of the Court; that by law the decisions of the CC are decided by a majority, but that the Court sits en banc with a quorum of eight judges; in fact, the Zuma/Thint matters were heard by a panel of ten judges; and that judges, and in particular judges of the highest court, would decide matters before them without fear, favour or prejudice as required by the Constitution.
  1. The CJ also says the matter is a novel matter, an opinion that is shared by other Judges of the CC.  If novel, it is difficult to conclude that Hlophe JP acted with “wilful blindness,“with the addition of a vituperative epithet”, “involving extreme departure from the standard of reasonable person which must demonstrate complete obtuseness of mind or total failure to take care” when he spoke to Nkabinde J and Jafta JA, which would be “gross misconduct” within the meaning of section 177 of the Constitution.
  1. We accept the fact that Hlophe JP discussed the pending matters with two judges of that Court in matters in which he had not sat. His conduct may have been unwise, ill-considered, imprudent, not thought through. But in and of itself it is not gross misconduct within the meaning of the Constitution. This is particularly so because the evidence was that he did not know that the practice in the Supreme Court of Appeal and the Constitutional Court is that the judges, even amongst themselves, do not discuss matters before argument, and even after argument do not discuss the matters with other judges who are not involved.  The South African Guidelines for Judges does not raise this conduct squarely as being unethical. The conduct may fall to be addressed by the ambit of the Judicial Service Amendment Act. But the proposed Act has yet to come into force.
  1. The real issue in respect of the complaint is whether the evidence shows that Hlophe JP in his discussions with Nkabinde J and Jafta JA attempted to influence them or the Court to decide the Zuma/Thint matters in Zuma’s favour. The allegation that Hlophe JP said the matters must be decided in a particular way appears in the statement made by the CJ, which was confirmed as correct by all the Judges, including Nkabinde J and Jafta JA.
  1. However, Jafta JA himself does not say that Hlophe JP said he desired a particular result.  He says that he inferred it from the utterances by Hlophe JP that Mr Zuma was persecuted and that the Supreme Court of Appeal had got it wrong. In our considered view, this is not the only reasonable inference to draw from what Hlophe JP told Jafta, on any version. Consequently, the evidence of Jafta JA does not support the sting in the complaint. Nkabinde J, on the other hand, repeatedly testified that Hlophe JP said the question of privilege must be decided properly. And, she has not with sufficient consistency said that Hlophe JP had said that the cases must be decided in a particular way, in particular in favour of Mr Zuma. As pointed out above, when pertinently and expressly asked if Hlophe JP had said so, she was firm that he had not.
  1. The CJ’s statement says what was communicated to Jafta JA was that the matters must be decided in favour of Mr Zuma. That is not what Jafta JA said in his evidence. As pointed out, at best, he said he had made that inference. On a proper analysis of her evidence, this is what Nkabinde J also said. Having regard to the totality of the facts and the context, we do not accept that that is the only reasonable inference to be drawn. We cannot reject Hlophe JP’s contention that he did not attempt to improperly attempt to influence the two judges to decide the cases in Mr Zuma’s favour.
  1. We have also considered the following: the two conversations should be considered collectively to determine if Hlophe JP attempted to improperly influence the Judges. We consider that when all the matters that we have referred to above are properly taken into account the same conclusion is reached. Hlophe JP talked to two judges whom he knew at some level or the other and expressed strong views about cases that they had heard but had not yet decided. In our view the sum of the whole is not greater than the sum of the parts.
  1. Finally we point out that the purpose of a formal hearing cannot only be to establish credibility for the purposes of showing that the version of one judge or another is untruthful. In these proceedings at least, that is not the enquiry. It is also important that the JSC, as an organ of state, assists and protects the Courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the Courts within the meaning of the Constitution.[23]
  1. For these reasons, it is our considered decision that formal hearings are, in respect of the complaint and counter-complaint, not warranted.
  1. In the premises both the complaint and the counter-complaint are hereby finalised.

DATED at JOHANNESBURG on


[1] No 20 of 2008

[2] Langa and Others v Hlophe 2009 (8) BCLR 823 (SCA), at para [15].

[3] Section 1(d) of the Constitution of the Republic of South Africa Act, 1996.

[4] De Lange v Smuts NO and Others 1998 (3) SA 786 (CC).

[5] The Bangalore Principles of Judicial Conduct 2002 (The Bangalore Draft Code of Judicial Conduct 2001 adopted by the Judicial Group on strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, November 25-26, 2002).

[6] See Notes and Comments: Proposal for Mechanisms for Dealing with Complaints against Judges, and for a Code of Ethics for Judges, SALJ Vol 117, 2000; See also 1996 Australian Law Journal 126; Kurland – the Constitution and the tenure of Federal Judges 1969 University of Chicago LR 665-6.

[7] Section 165 of the Constitution.

[8] Section 177 of the Constitution circumscribing limited circumstances under which a judge may be removed from office.

[9] Section 176 (3) of the Constitution.

[10] Section 171 of the Constitution.

[11] See Canada, The United States of America and Centre for Independence of Judges and Lawyers, Special Issue: The Independence of Judges and Lawyers: A compilation of International Standards (April – October) 25-26 CIJL Bulletin.  New Zealand.

[12] Notes and Comments – Proposals for a Mechanism for Dealing with Complaints Against Judges, and for a Code of Ethics for Judges, SALJ Vol. 117, 2000, page 406 at seq.

[13] Henderson v Comptoir D‘:Escompte, 42 L.J.P.C. 64.

[14] Wilsons v Brett, 11 M.&W. 115, 116.

[15] Transnet Limited t/a Portnet v Owners of the Mv Stella Tingas 2003 (2) SA 473 (SCA).

[16] Section 177(1) of the Constitution read with The Judicial Services Commission Act and the JSC Rules.

[17] Rule 2, read with 3 of the JSC Rules.

[18] Section 165(3) of the Constitution.

[19] De Lange supra at para 70 reference to The Queen v Beauregard (1986) 30 DLR (4th) 481 (SCC) – paraphrased.

[20] In re: Goniwe and Others (Inquest) 1994 (3) SA 877 (SECLD) AT 879-880.

[21] Because she had been writing a post-hearing note on privilege, she was concerned: she and Mokgoro J wondered how Hlophe JP knew she had been writing on this aspect.

[22] Langa and Others supra at paras 48 – 56.

[23] Section 165(4) of the Constitution.

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