Constitutional Hill

The end of JP John Hlophe?

May 30th, 2008
by Pierre De Vos.

Just received the following statement from the judges of the Constitutional Court. Surely now the JP is toast? Is he out of his mind to try and influence judges in the Constitutional Court on an issue to be decided by them?

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 has been referred by the judges of this Court to the Judicial Service Commission, as the constitutionally appointed body to deal with complaints of judicial misconduct.

The complaint relates to the matters of Thint (Pty) Ltd v National Director of Public Prosecutions and Others (CCT 89/07), JG Zuma and Another v National Director of Public Prosecutions and Others (CCT 91/07), Thint Holdings (South Africa) (Pty) Ltd and Another v National Director of Public Prosecutions (CCT 90/07) and JG Zuma v National Director of Public Prosecutions (CCT 92/07). Argument in these matters was heard in March 2008. Judgment was reserved in all four matters. The Court has not yet handed down judgment.

We stress that there is no suggestion that any of the litigants in the cases referred to in paragraph 1 was aware of or instigated this action. The judges of this Court view conduct of this nature in a very serious light.

South Africa is a democratic state, founded on certain values. These include constitutional supremacy and the rule of law. This is stated in section 1 of our Constitution. The judicial system is an indispensible component of our constitutional democracy.

In terms of section 165 of the Constitution the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state may interfere with the functioning of the courts. Organs of state must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the Courts.

Each judge or acting judge is required by item 6 of schedule 2 of the Constitution, on the assumption of office, to swear an oath or solemnly affirm that she or he will uphold and protect the Constitution and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. Other judicial officers or acting judicial officers must swear or affirm in terms of national legislation.

Any attempt to influence this or any other Court outside proper court proceedings therefore not only violates the specific provisions of the Constitution regarding the role and function of courts, but also threatens the administration of justice in our country and indeed the democratic nature of the state. Public confidence in the integrity of the courts is of crucial importance for our constitutional democracy and may not be jeopardised.

This Court – and indeed all courts in our country – will not yield to or tolerate unconstitutional, illegal and inappropriate attempts to undermine their independence or impartiality. Judges and other judicial officers will continue – to the very best of their ability – to adjudicate all matters before them in accordance with the oath or solemn affirmation they took, guided only by the Constitution and the law.

30 May 2008

 

Posted in: Constitutional Court, Hlophe.

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32 Comments

  1. khosi says:
    May 30, 2008 at 16:36 pm

    Pierre,

    If its true, this guy must FRY. I hate to say it but you were right.

  2. z says:
    May 30, 2008 at 16:50 pm

    Freakin crazy! You said it Khosi, FRY.

    Though they said it can’t, imagine someone does link it up with litigants!

  3. Anonymouse says:
    May 30, 2008 at 17:07 pm

    I think I said it before, Hlophe is incompetent to be a judge; an unfortunate product of affirmative action (however laudable the aims of affirmative action are – surely other, better, black lawyers exist which could have been appointed in his stead?); and, he should never have been appointed as a judge. His corrupt interference with judicial proceedings is not new (he previously granted a company on whose payroll he is leave and license to institute civil action against a judge of his own Division!), and the JSC let him of the hook! He cannot be trusted by littigants ever since, and this latest attempt of his to interfere with the proceedings in the CC (the land’s highest court!) should surely lead to his being impeached. He should surely be censured in the strongest of possible terms, and he should not be allowed to escape with impunity, even if he resigns (which would be the honourable thing to do – but can one expect of him to be honourable?). He should never be allowed to practice law in this state ever again.

  4. Anonymouse says:
    May 30, 2008 at 17:35 pm

    Z, as you say. Quite a coincidence that one of the littigants (Thint) is being charged with corruptly paying the state’s Deputy President in order to secure a bussiness agreement with the state; JP Hlophe has received money from a company for ‘services rendered’ without the permission of the Minister (as he was already deceased at the time he said he obtained his permission); Zuma has been said to have at least tried to politically influence the judicial proceedings in Mauritius; Zuma and his followers are tryng their utmost to have the Scorpions disbanded; and now, Hlophe commes and tries to influence proceedings in the CC where Thint and Zuma is involved. For the ordinary person on the street, things start smelling fishy (I will not say I smell a ‘rat’ – my psuedonymn and Khosi’s jokular reference thereto at times you see?), and it therefore the CC has to be aplauded and respected for its timeous action to demonstrate its impartiality.

  5. Anonymouse says:
    May 30, 2008 at 17:38 pm

    Sorry, ‘is involved’ should read ‘are involved’ and ‘it’ should be deleted from my last sentence.

  6. Wessel van Rensburg says:
    May 30, 2008 at 17:57 pm

    I’m gob smacked at the audacity of Hlophe to even try this. But then he has gotten away with brazenly flaunting the law before.

    This time I suspect he bit off more than he can chew.

  7. khosi says:
    May 30, 2008 at 18:03 pm

    I cannot wait to here in whose favor he was trying to influence the CC. Common sense tells me that it could not have been in support of the State.

    And we always ask ourselves why TM saw the need to be humiliated in Polokwane.

  8. khosi says:
    May 30, 2008 at 18:10 pm

    Lets just pause and remember these words

    “The person who fights for what is good, and does it honestly, will always be defeated by the forces of evil…. but it would not be right not to fight just because you know death is coming.”

  9. Wessel van Rensburg says:
    May 30, 2008 at 19:31 pm

    …who said that Khosi? Jesus? Sadam Hussein?

  10. khosi says:
    May 30, 2008 at 19:49 pm

    it was Jesus Mbeki.

  11. Clara says:
    May 30, 2008 at 20:06 pm

    Judge Hlophe leads a charmed life, or thinks he does. What he is being accused of now (of course, he denies everything) must have netted him yet another tidy sum. Time to upgrade the Porsche, perhaps?

  12. z says:
    May 30, 2008 at 20:42 pm

    Clara

    A private jet I would guess. He might just need it.

    Pierre

    I’ve got a question after the Shaik judgement. Once again forgive my ignorance and explain to a poor peasant, how our justice system convicts one party in a two way corrupt relationship yet the other walks free?

    I cannot comprehend how the exact same evidence for Shabir’s trial isn’t enough to convict Zuma.

    Does it not make sense in such a case for the two to stand trial together?

  13. khosi says:
    May 30, 2008 at 20:43 pm

    Pierre,

    It looks like another ‘crisis’ is brewing. What is the legal way forward. I pray that the remedy does not involve TM, his table is full as is.

  14. Garth says:
    May 30, 2008 at 20:46 pm

    Hlophe will probably get away with it. I will be very surprised if he even gets censured, never mind fired.

    I would also like an answer to Clara’s question……….it seems like the law might be an ass after all.

  15. z says:
    May 30, 2008 at 20:59 pm

    Khosi

    What crisis? I am not following you.

  16. khosi says:
    May 30, 2008 at 21:06 pm

    z,

    ha… ha

  17. z says:
    May 30, 2008 at 21:22 pm

    Khosi

    hehe, It is funny I realise now, but I actually didn’t mean it that way. hehe.

    I don’t know what crisis you are talking about. Is Hlope a crisis? how does that influence TM?

  18. Wessel van Rensburg says:
    May 30, 2008 at 22:59 pm

    z Zuma was never charged. It is that simple.

    Why not? I can only speculate that at the time TM did not think it a good idea, and interfered. Because if Zuma went down details of the arms deal could surface that would reflect badly on him.

  19. khosi says:
    May 31, 2008 at 0:00 am

    z,

    Pierre addresses the ‘crisis ‘ in his next blog.

  20. z says:
    May 31, 2008 at 9:28 am

    Wessel

    My question is broader regarding the consistency of the law. Sure it is unjust for one to be in jail and the other free. Does that not mean that there is a problem with our judicial system somewhere? Who should take the blame? And how can it be prevented?

  21. Anonymouse says:
    May 31, 2008 at 9:56 am

    Z, excuse me for interrupting before Wessel could respond. The problem with our judicial system ‘somewhere’ is that political influences have in recent years have had profound effects on decisions by the NPA to prosecute or not. In this case, Blulelani Ncquka (NDPP at the time) said, if I remember well, that there is a prima facie case that can be presented against Jacob Zuma, but that he has decided to first prosecute Shabir Shaik before he decides what to do with JZ. Shortly after that, Ncquka conspiquously ‘resigned’ as NDPP. Later, under Pikoli, it was decided that JZ must be prosecuted, but with the jackie Selebi debacle, and the fact that a KZN judge did not want to postpone the trial in waiting of important judgments such as these that still have to be given by the CC, Pikoli was suspended before he could get the wheels in motion against even Zuma. Zuma’s prosecution was one of the dossiers that had to be reconsidered by Mpshe, the actig NDPP, before it was finally decided to prosecute JZ again. If the whole process surrounding the prosecution of high pblic office bearers has not been subject to political (and other) interferences in recent years is a myth, nothing else. Fortunately, thus far the rule of law has been the victor in each of these instances, but when will politiians leave the law to run its course?

  22. z says:
    May 31, 2008 at 13:21 pm

    Thanks Mouse.

    Part of my issue is, how do you prevent such unjust scenarios from happening? Shouldn’t both sides in a corruption charge be charged together? How can the judicial system be made more fair in this regard?

  23. Anonymouse says:
    May 31, 2008 at 15:20 pm

    Z, there is no rule of law requiring that both parties to a corruption charge (or any other charge, for that matter) should be charged together. It will all depend on the evidence available and the strategy of the prosecution. Sometimes it will be more beneficial for the prosecution to try accomplices apart than to try them together, for a myriad of reasons. E.g., an accomplice might, during the trial, after initially denying everything, change his/her tune and thus provide valuable evidence that can be used against the other; new evidence might be uncovered during the trial of one; less evidence is needed to prove the involvement and guilt of the one than what is required to have the other convicted; political influence might dictate that some are tried first and, only if it has been proven in a court of law that evidence against the other exists, may the prosecution against him/her continue. The Shaik / Zuma prosecutions provide fine examples.) On the other hand, it would sometimes be more beneficial for the prosecution to prosecute people together. (The Moolman/Madikizela Mandela prosecution is a fine example.) Then again, there are cases where policy dictates that only one should be prosecuted, probably where the evidence of one is needed to present any case against the other. (The yengeni case is a fine example because, if Yengeni did not plead guilty, the evidence of the officials of Daimler hrysler would have been necessary to justify a prosecutrion or secure a conviction.) Hope this helps.

  24. z says:
    June 2, 2008 at 9:11 am

    Thanks Mouse.

    It’s all grey to me. (;

  25. Thabo says:
    June 2, 2008 at 11:43 am

    I’m obviously disappointed at the news from constitutional Hill. How could a single judge influence 11 concourt judges. Its bizarre. We need all the information. For all we know this might be another racist operation to discredit the guy. Just heard he was tipped to be chief justice once JZ takes over.

  26. Mpho says:
    June 2, 2008 at 14:19 pm

    Stone gave us a link to his article, now I can’t find it anywhere! But Stone, I just want to point out that Judges NEVER discuss their Judgements. The exception to that, and the reason it was so weird, was Judge Squires Judgement, and I don’t know of another one. A Judgement is a public document and can be used in whatever means by whatever person. You can’t blame the Judiciary for people misquoting their statements!

  27. Anonymouse says:
    June 2, 2008 at 14:30 pm

    Thabo, in the light thereof that it has now been established that it was Nkabinde J and Jaftha AJ who have allegedly been approached by Hlophe JP you may perhaps want to reconsider your opinion that, ‘for all we know this might be another racist operation to discredit the guy’. The way in which your comment was framed is strongly reminicent of what one would have expected Thabo Mbeki to respond, are you him?

  28. Anonymouse says:
    June 2, 2008 at 18:03 pm

    Thabo, was this a one-time-hit, or are you going to respond?

  29. Mpho says:
    June 2, 2008 at 21:29 pm

    “Just heard he was tipped to be chief justice once JZ takes over.”

    Thabo, yes, it was Hlophe himself who was spreading the rumour! ROFL

  30. Anonymouse says:
    June 3, 2008 at 20:40 pm

    Thabo, are you going to answer my question above? Or, should we just speculate?

  31. tshepo says:
    June 5, 2008 at 16:59 pm

    Judge Hlope hasn’t been found guilty and has yet to defend himself in an enquiry or court of law.

    Till then, this is merely a complaint and proper procedures must be followed to deal with this matter.

  32. Colin says:
    June 5, 2008 at 17:33 pm

    If Hlope is left alone his head will swell to a point where he won’t be able to walk thru the doors.

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