Internal threats the ‘greatest’ risk to judicial independence

The judiciary faces “no greater threat” than that within its own ranks, lawyers representing the Judicial Service Commission (JSC) said in the high court in Pretoria on Tuesday.

Advocates Tembeka Ngcukaitobi and Vincent Maleka are representing the JSC in the case of Western Cape judge president John Hlophe’s application for the setting aside of the commission’s finding of gross misconduct on Hlophe’s part.

Pretoria high court judges Audrey Ledwaba, Roland Sutherland and Margaret Victor are presiding over the hearing of Hlophe’s application.

“I want to stress that there is no greater threat to judicial independence than internal threat. If the judiciary is eroded it is extremely difficult to police and it can be corrosive,” Ngcukaitobi said on Tuesday.

Ngcukaitobi also took on another aspect of Hlophe’s case: that the JSC meeting at which the gross misconduct decision was taken was constituted improperly.

Hlophe’s argument was that neither chief justice Mogoeng Mogoeng nor deputy chief justice Raymond Zondo was there. Nor were the Supreme Court of Appeal president Mandisa Maya or her deputy, Xola Petse.

Instead, justice Sisi Khampepe was appointed acting deputy chief justice for the day and SCA judge Boissie Mbha stood in for the SCA leaders.

On Monday, Hlophe’s counsel, Thabani Masuku, argued that these delegations were unlawful, and the meeting could be set aside on that basis. But Ngcukaitobi argued that all the relevant judgments were that if there was a good justification for these commissioners not to be there, it would not invalidate the meeting.

In this instance, there were good reasons, uncontested by Hlophe, for these senior judges not to be there. Moreover, if Khampepe and Mbha were disallowed, the JSC would have been inquorate, he said.

Ngcukaitobi said that Hlophe’s arguments would lead to the “absurd outcome” of a state of paralysis and were “self-serving.

“What he is gunning for is a regime in which he is immunised from taking the consequences of his actions,” said Ngcukaitobi. Maleka said that the public must have faith in the judicial process and outcome. He said that interference in the courts should be outlawed.

The JSC’s findings against Hlophe are rational, lawful, and reasonable, said Maleka.

“One of the litigants in the case pending before the Constitutional Court was [former president] Mr [Jacob] Zuma and the [judge president] mentioned his name by details in the course of his conversation with justice Jafta.”

Hlophe’s criticism of the appeal court amounts to expressing a professional view about a matter pending before the top court, said Maleka. “He even went further and said that that litigant was persecuted like he was. The unchallenged evidence of justice Jafta was that he got the impression that justice Hlophe was expressing a conclusion in favour of Mr Zuma. That evidence is there by justice Jafta. It has not been challenged,” said Maleka.

The JSC in August referred Hlophe to parliament for possible impeachment.

Its decision related to a 2008 complaint by all the then justices of the Constitutional Court that Hlophe had sought to influence improperly the outcome of cases then pending before their court regarding corruption charges against Zuma. The complaint followed two visits to the Constitutional Court — one to justice Chris Jafta, then acting at the highest court, and one later to justice Bess Nkabinde.

According to the April 2021 report of the Judicial Conduct Tribunal, in both cases Hlophe had, uninvited, raised the Zuma cases and said the Supreme Court of Appeal’s (SCA) judgment — which was then being appealed against — was wrong. He also said that there was no case against Zuma, and that the former president was being persecuted just as he, Hlophe, was.

To Nkabinde, he had “bragged” about his political connections, and said people would lose their jobs once Zuma became president, according to the tribunal. To Jafta, after saying the SCA had got it wrong, he had said the now infamous words “sesithembele kinina” — loosely translated by a witness as “we put our trust in you”.

The tribunal found that Hlophe had sought improperly to influence Nkabinde and Jafta to violate their oaths of office. Its view was endorsed by the JSC in August, when it found, by a majority, that he had committed gross misconduct.

President Cyril Ramaphosa, justice minister Ronald Lamola, National Assembly Speaker Nosiviwe Mapisa-Nqakula, legal interest nonprofit Freedom Under Law (FUL) and six former justices in the Constitutional Court are among the remaining respondents.

Serious affront

Representing FUL, Max du Plessis raised former chief justice Pius Langa’s own description of the top court’s response to Jafta and Nkabinde allegations against Hlophe. Langa was the chief justice then.

Langa said on behalf of the court that the judges were “shocked and distressed” and none of them had “experienced such a serious affront to the integrity of the judicial process in their careers” so “the matter was accordingly viewed in the gravest possible light”, Du Plessis told the court.

“That’s how our country’s highest and most respected jurists perceived the nature of the threat and on the common cause facts, including […] the premeditation […] which was not contested under cross-examination,” said Du Plessis.

Advocate Gilbert Marcus is representing the six then Constitutional Court justices, who were informed by Jafta and Nkabinde of Hlophe’s approach on the Zuma matter over which they were deliberating. Dikgang Moseneke, Yvonne Mokgoro, Kate O’Regan, Albie Sachs, Johann van der Westhuizen and Zak Yacoob have all retired.

Marcus told the high court that the present case is fundamentally about the propriety of one judge from an entirely different division and court seeking to influence improperly or interfere with the functioning of two justices of SA’s highest court, after argument had been heard and when judgment was pending.

“What occurred […] was no casual conversation between judicial colleagues exchanging pleasantries […] on both occasions it was the [judge president] who initiated the discussion,” said Marcus.

Proceedings continue on Wednesday.

batese@businesslive.co.za