Western Cape High Court judge president John Hlophe. Picture: GALLO IMAGES
Western Cape High Court judge president John Hlophe. Picture: GALLO IMAGES

Western Cape Judge President John Hlophe, who has been subject to a 12-year inquiry as to whether he tried to improperly influence the Constitutional Court’s pending judgment in the case against former president Jacob Zuma and French arms dealer Thint, has been found guilty of gross misconduct.

The Judicial Conduct Tribunal unanimously found that Hlophe improperly attempted to influence Justice Bess Nkabinde and Justice Chris Jafta to violate their oaths of office, according to a report issued late on Saturday.

The tribunal consisting of Judge Joop Labuschagne, Judge Tati Makgoka and attorney Nishani Pather found that Hlophe’s conduct seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court, thereby threatening public confidence in the judicial system. The tribunal’s report has been submitted to the Chairperson of the Judicial Service Commission (JSC) for consideration.

The Tribunal’s decision comes after a lengthy legal process that began in March 2008 when Hlophe visited Justice Jafta at his chambers at the Constitutional Court, whereupon he initiated a conversation about the Zuma/Thint matter. Hlophe told Jafta that he felt strongly about the issue of privilege and fair trial rights and that the matter had to be dealt with “properly”. He concluded the conversation by saying “sesithembele kinina”, which translates roughly as “you are our last hope”.

On April 24 Hlophe contacted Justice Nkabinde telephonically requesting to meet her at her chambers at the Constitutional Court and asked her in isiZulu to look at the “issue of privilege”. While at lunch with Justice Jafta that same afternoon she mentioned the telephone conversation with Hlophe. Jafta cautioned her that Hlophe might discuss the Zuma/Thint matter.

The after day Hlophe met with Nkabinde and mentioned that certain ministers he advised had concerns about who had been appointed to the Constitutional Court and that such appointees should understand the history of the country. Hlophe then raised the Zuma/Thint matter saying that he was concerned that the majority in the Supreme Court of Appeal did not attach much weight to the issue of privilege’ and expressed ‘very strong views on it’.

He also remarked that the Zuma/Thint case was probably one of the most demanding of the cases that the Constitutional Court had dealt with, given its importance to the president of the ANC, Jacob Zuma, the ANC itself and the country, since it was clear at that point that Zuma would likely become president of SA. When Nkabinde cautioned him that as a non-member of the court he was not entitled to discuss the Zuma/Thint matters, he explained that the point is that there is no case against Zuma.

In the ensuing 12-years of legal wrangling, which involved numerous delays and legal challenges, Hlophe had argued that the two Constitutional Court Justices — Nkabinde and Jafta — were unwilling participants in the complaint against him and had been pressured to do so. The tribunal noted that the insinuation was that the alleged pressure had “presumably” come from the late Chief Justice Pius Langa and current Deputy Chief Justice Dikgang Moseneke. The tribunal found those allegations to be “without any substance.”

“We consider it our duty to vindicate the integrity of the Justices of the Constitutional Court, in particular Chief Justice Langa, Deputy Chief Justice Moseneke, Justice Nkabinde and Justice Jafta, whose integrity has been called into question by Judge President Hlophe’s unfounded and scurrilous attacks,” the tribunal said in its report. “They acted with honour to protect the institutional integrity of the apex court of our Republic.”

In conclusion the tribunal said that “on an objective and proper consideration of the facts and probabilities” Hlophe is guilty of gross misconduct as per section 177 of the constitution.

Hlophe is now likely to face possible impeachment though this hinges on the outcome of the JSC’s review of the tribunal’s report. The JSC will “in due course” consider the report at a meeting to be determined by its chairperson in accordance with section 20 of the JSC Act.

theunisseng@businesslive.co.za

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