Who leaked the documents?

Most of us got our knickers in a knot when newspapers reported on the statement issued by Justice Bess Nkabinde and acting Constitutional Court Chris Jafta that they would not personally lodge a complaint against Judge President John Hlophe or make a statement about it. Concern grew as newspapers reported as follows:

Constitutional Court judge Bess Nkabinde and acting judge Chris Jafta will be subpoenaed to testify before the Judicial Service Commission against Cape judge president John Hlophe, City Press reported on Sunday.

Constitutional Court judges were “gobsmacked” when they learnt that Nkabinde and Jafta had decided to not pursue a complaint that Hlophe had allegedly tried to influence them to rule in favour of ANC president Jacob Zuma.

Given these news reports it was difficult not to conclude that the two judges were now backing away from involvement in the complaint. It damaged the image of the highest court and created the impression that the Court was divided, with some judges hell bent on pursuing the matter while others were reluctant to get involved because of political expediency. When the counter- complaint lodged by Judge President Hlophe – was then leaked to the media, it created even more distrust and disquiet and many of us were deeply worried and depressed about the way this was being handled by the Constitutional Court.

But yesterday a full complaint was lodged on behalf of all eleven judges of the Constitutional Court by the Chief Justice and suddenly there was no sign of the rift between the various judges of the highest court. What to make of this?

First, it is with great relief that I heard about the joint complaint by the Constitutional Court. It suggests that the Court has rightly decided that any alleged improper approach to any of the judges of the Constitutional Court is an attack on the integrity and the independence of the Court as a whole and that it is not for one or two judges to carry the can but for the court as a unit to take the matter further.

We will have to wait and see what is contained in the complaint by the Constitutional Court before it would be possible to fully assess Judge President Hlophe’s chances of survival. He will also have to be given a chance to give his side of the story, of course. But if all eleven judges of the highest and most respected court in the country believe that Judge President Hlophe acted in a way that constitutes gross misconduct, he must surely now be feeling the heat.

Second, Judge President Hlophe or some of his supporters have shown no respect for the integrity and independence of the judiciary and have demonstrated that they will play dirty and fight to the bitter end to save his skin. It is unclear who leaked the letter of Nkabinda and Jafta and then the counter complaint by Hlophe but it is difficult not to suspect that this was done either by Judge President Hlophe or one of his supporters on the JSC. By leaking these documents they managed to outwit the Constitutional Court in the media battle and helped to create the crisis we now face.

Third, the Constitutional Court – and Judge Nkabinda and Jafta in particular – showed some naivety in their handling of this affair. They did not foresee that their statement would be leaked or that when it was leaked it would create the impression of division in the Constitutional Court. It would have been better if the judges had all jointly prepared the complaint before they announced anything to the media.

By waiting almost two weeks before lodging the full complaint, they provided an opening for the other side to exploit the situation and to accuse the highest court of maliciousness and impropriety. This was a tactical mistake. The Constitutional Court judges obviously did not foresee that Judge Hlophe and his defenders would fight dirty in this matter, but they should have.

It allowed the other side to change the terms of the discussion away from whether Judge President Hlophe had acted in an improper way, to whether the judges of the Constitutional Court had acted properly. The last time Hlophe was in hot water he used exactly the same tactics, attacking his attackers and skillfully using the existing resentments among black lawyers and judges about the arrogance and even racism of some white lawyers and judges to deflect attention from the real questions, namely whether he had taken money from Oasis without permission from the Minister, had lied about it and then did favours for Oasis in return.

As it turned out, this was necessary for his survival because the answer to all three questions was “yes”.

What is needed now is for the complaint of the Constitutional Court to be made public so that we can again focus on the real issue: namely whether Judge President Hlophe improperly tried to influence some of the judges on the Constitutional Court to decide the Zuma case in a particular way. Everything else is really a side show and we should not allow ourselves to be detracted from the main issue – although I have no doubt that Hlophe and his defenders will do anything they can to make the side show the main event.

That is why all the documents were leaked this weekend and that is why Judge Hlophe laid a ridiculous complaint of his own against the judges of the Constitutional Court. The last time he did this, many lawyers fell for this trick. We should not allow this to happen again. The JSC should deal with the real complaint in as open and transparent manner as soon as possible to ensure that some trust in our judiciary is restored.

And if Judge President Hlophe is shown to have acted improperly, the JSC should take swift action against him. Meanwhile, while we wait for more information on the complaint of the Constitutional Court and of course Judge Hlophe’s response, we should be vigilant and should not allow the Judge President or his defenders to change the topic or to reframe the discussion and refocus it on technicalities.

Jacob Zuma has been brilliant at that game and look at him now: just one step away from the Presidency.

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