12 years after allegedly trying to swing ConCourt ruling for Zuma, Hlophe to face inquiry

Western Cape Judge President John Hlophe will next week face an inquiry into his fitness to be a judge – 12 years after he allegedly tried to influence two Constitutional Court justices to rule in favour of then ANC president Jacob Zuma.

The Judicial Service Commission (JSC) on Thursday confirmed that a Judicial Conduct Tribunal, consisting of retired Gauteng Judge Joop Labuschagne, Supreme Court of Appeal Judge Tati Makgoka and practising attorney Nishani Pather, would hear the complaint lodged against Hlophe by the country’s highest court in 2008.

The hearing comes as Hlophe faces the possibility of a separate impeachment inquiry for allegedly assaulting a fellow judge, verbally abusing his deputy, Patricia Goliath, and abusing his power.

In next week’s hearing, he stands accused of attempting to sway two Constitutional Court justices to swing a pivotal ruling in favour of Zuma, at a time when the aspirant president was facing prosecution for arms deal-linked corruption.

At the time, Hlophe framed the complaint against him as driven by improper, and potentially racist, motives linked to his authorship of a 2004 “Racism Report” – in which he accused multiple white judges and advocates of being racist.

The Heads of Court had evaluated Hlophe’s racism report and found that his allegations “against individual judges and some of the members of the legal profession have, in general, been refuted by the persons concerned”.

Persuade

Hlophe, however, stood by his accusations, which he claimed were the true reason that the Constitutional Court alleged that he had tried and failed to persuade Justices Bess Nkabinde and Chris Jafta to rule that the search and seizure raids conducted on Zuma and his lawyers – in which the Scorpions reportedly seized 93 000 pages of evidence – were not lawful.

Nkabinde and Jafta would tell the JSC sub-committee, first tasked with deciding whether Hlophe should face possible impeachment, that the Judge President told them both separately that the Supreme Court of Appeal – which had dismissed Zuma’s challenges to the legality of the warrants – had got it wrong.

According to Jafta, Hlophe told him that the cases involving Zuma needed to be looked at “properly” because he believed Zuma was being persecuted, just as he (Hlophe) had been persecuted.

Jafta said Hlophe told him “sesithembele kinina“, meaning “we pin our hopes on you”.

In her evidence, Nkabinde said Hlophe had told her telephonically that he “had a mandate and that they could talk about privilege”.

Challenges

The issue of attorney-client privilege was one of the key challenges raised by Zuma’s lawyers to the legality of the Scorpions raids, as authorities had also seized multiple documents from his attorney Michael Hulley.

According to Nkabinde’s evidence, Hlophe had visited her in chambers and started talking about the Zuma case. He said that it was “an important case and that the issue of privilege was also important”.

“It had to be decided properly because the prosecution case rested on that aspect of the case.”

Nkabinde said she responded by snapping, “my brother, you know that you cannot talk about this case. You have not been involved in the case, you have not sat on it and you are not a member of the court to come and talk about the case”.

She testified that Hlophe had then told her that he did not mean to interfere with her work, but he went on to explain “that the point is that there is no case against Mr Zuma”. He repeated that “Mr Zuma has been persecuted, just as he was persecuted”.

During his interview with the JSC sub-committee, Hlophe denied much of the evidence given by Jafta and Nkabinde, and suggested that they may have misconstrued certain of his comments. He categorically denied trying to influence either of them.

He also lashed out at then Chief Justice Pius Langa and his deputy, Dikgang Moseneke, who he said should themselves face impeachment for “orchestrating the complaint” against him – a move that is now being echoed in his response to Chief Justice Mogoeng Mogoeng’s recommendation that he face an impeachment tribunal in connection with his conduct towards Goliath.

In a decision that was later overturned by the Supreme Court of Appeal, the JSC chose not to pursue a possible impeachment investigation against Hlophe – despite massive differences between his testimony and that given by Nkabinde and Jafta.

Now, after years of legal wrangling, multiple court challenges and recusal applications, the complaint is finally set to proceed next week.

If he is impeached, Hlophe will be the first judge in democratic South African history to be stripped of his position and benefits.

Given the history of this convoluted and acrimonious process, however, he is unlikely to let that happen without a bitter and potentially litigious fight.

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