The postponement followed a request by Selby Mbenenge SC, for Constitutional Court judges Chris Jafta and Bess Nkabinde, for the tribunal’s reasons to continue its hearings despite their objections.
Jafta and Nkabinde indicated that they intended asking for a high court review of the decision to continue with the tribunal hearing. “We think that in the special circumstances of this case it would be unreasonable to insist that the matter be proceeded with forthwith…,” said tribunal president, retired judge Joop Labuschagne.
“The matter is postponed sine die [indefinitely]. We shall furnish our reasons as soon as possible,” he said. Earlier, Mbenenge said Jafta and Nkabinde asked the tribunal, sitting in Kempton Park, east of Johannesburg, to excuse them from appearing and testifying pending the launch and finalisation of the high court review.
“They are not bent on delaying these proceedings. At this stage they are not seeking a postponement. All they are saying… is let us be excused from appearing and testifying.” He said they were concerned about appearing before a tribunal that was illegitimate.
The tribunal ruled on Thursday that the misconduct hearing should proceed, despite objections by Jafta, Nkabinde, and Hlophe. During the hearing into the tribunal’s legitimacy, Mbenenge submitted that it was not properly appointed, that its rules were invalid, and that there was no complaint to investigate.
He contended that Jafta and Nkabinde were entitled to raise the defence that they were not obliged to subject themselves to the proceedings. “Our submission is, crudely speaking, that we must pack and go, all of us. There is nothing to postpone.”
On Tuesday, Mbenenge said: “It may be that an impression is created that our clients are bent on avoiding this tribunal. “They are prepared to testify when called upon by a properly appointed functionary or tribunal.”
At the start of proceedings on Tuesday, Labuschagne, read out a letter addressed to the JSC secretariat about the planned high court review. He said the tribunal had replied that it had considered the letter, and “confirms its decision to give full reasons on the preliminary points raised in our final report to the JSC”.
In 2008, Jafta and Nkabinde alleged Hlophe approached them while they were considering a corruption case involving President Jacob Zuma and arms company Thint in the multi-billion rand arms deal.
The justices regarded discussing the case with them as an attempt to improperly influence its outcome and a complaint was lodged.
Hlophe, affronted that the judges had sent a copy of the complaint to the media before he had time to respond to it, laid a counter-complaint. A lengthy stop-start parallel process of JSC hearings and court challenges ensued.
The matter was heard in the Supreme Court of Appeal with rulings in favour of Western Cape premier Helen Zille and lobby group Freedom Under Law. Evidence leader Xoliswa Khanyile said on Tuesday she wanted to “get on” with the proceedings.
“[However], justices Jafta and Nkabinde are the only two witnesses who can give this tribunal material and relevant information,” she said. “I believe it is only fair for this tribunal to allow them to exhaust whatever avenues that they want to exhaust before they come and give evidence before this tribunal.”
She said Jafta and Nkabinde’s attorney had told her not to give effect to the subpoena for the two to appear and that court papers would be filed no later than October 18.
Courtenay Griffiths QC, for Hlophe, said that if proceedings went ahead, in the future “an ingenious advocate” would argue that Hlophe had accepted the legitimacy of the tribunal. He said Khanyile was not in a position to place evidence before the tribunal.
“We insist the tribunal act according to its statutory responsibilities and at this stage… report that ‘we have received no evidence and the evidence leader whose responsibility it is to do that is unable to do so’.”
He said Hlophe had been waiting for proceedings to start, because he wanted closure to “this shabby sequence of events”. It was wrong to state that proceedings were being delayed because of Hlophe.
Gilbert Marcus SC, for the Constitutional Court judges excluding Jafta and Nkabinde, said: “The attitude of those that I represent is that they will abide by the decisions of this tribunal”. He said the judges would consider their position in the litigation once they saw “the nature of the legal challenge”.
Griffiths also raised the issue that Hlophe was concerned by media reports at the weekend. One of the reports quoted Constitutional Court justices on the matter. “These proceedings… could give rise to appellant hearings before that very court to which those judges belong,” Griffiths said.
“It is highly irresponsible that Constitutional Court judges… are offering opinions on which they may have to, in due course, announce on.” Labuschagne said the tribunal did not have enough and appropriate facts to make a decision on the reports and the media comments of the justices.