Judge Hlophe’s six main arguments against tribunal ruling

Embattled Western Cape Judge President John Hlophe has slammed the Judicial Conduct Tribunal’s ruling that found him guilty of gross misconduct.

Hlophe says while he respects the tribunal’s decision delivered on Saturday, he fundamentally disagrees with the factual and legal findings of the panel that investigated claims from 2008 that he tried to sway two Constitutional Court judges to rule in favour of former president Jacob Zuma.

Explainer: What happens now for John Hlophe?

The judge has denied the allegations against him in a statement issued by his lawyers, B Xulu and Partners Incorporated, late on Tuesday night.

He said he never set out to influence or persuade justices Chris Jafta and Bess Nkabinde to violate their oath of office and he would in due course address the “appropriate forum” on his contentions against the tribunal’s ruling.

Hlophe is the first judge in South Africa’s democratic history to be found guilty of gross misconduct by the Judicial Services Commission’s (JSC’s) tribunal and his fate now rests with the commission which has to decide whether to confirm the tribunal’s findings or not.

Here are Hlophe’s main arguments against the tribunal’s decision:

1. Hlophe believes the tribunal misdirected itself on numerous procedural and substantive issues, which rendered its findings unjustified.

2. He argues that on at least two occasions, he questioned the participation of counsel for the Constitutional Court.

“For example, without justification the acceptance of a change of a critical part of the evidence, some 12 years after the lodgment of the complaint; the tribunal found that until this argument was raised during its sitting in December 2020, Judge President Hlophe has never once, in the 12 years of this complaint, questioned the participation of counsel for the Constitutional Court. This is simply incorrect as a fact. A careful examination of the tribunal transcripts will show that the issue was pertinently raised on at least two pre-trial occasions,” his lawyers said.

3. The judge argues that the JSC tribunal failed to deal with serious contradictions in the evidence of the witnesses who testified against him.

“It accepted the version of the judges who testified against Judge President Hlophe only on the basis of an unexplained preference without rejecting Judge President Hlophe’s version; and the tribunal found that the credibility of Judge President Hlophe was not impugned. There was therefore no reason to prefer one version of events over the version given by Judge President Hlophe.”

4. Hlophe is of the view the tribunal’s ruling was not based on evidence but considerations irrelevant to the facts. He said the tribunal should have carefully examined evidence given to the JSC in 2009 that found him not guilty of gross judicial misconduct.

“It is important to recall that the same evidence which the tribunal had to consider has been dealt with by the JSC in a well-reasoned judgment dated 28 August 2009 which was set aside on the basis of a technicality and not the merits of its findings on the evidence. The JSC in 2009 found that there was no evidence of judicial misconduct against him. Now, faced with the analysis of the evidence conducted by the JSC in 2009, the tribunal could deviate so far from that is inexplicable.”

5. Judge Hlophe complains that the tribunal appeared to have “endorsed the partisan views” of retired Constitutional Court judge Johann Kriegler and civil society organisation, Freedom Under Law, which he accused of engaging in a “spirited campaign” to get him removed from the bench.

6. He also argues the tribunal endorsed the views of the DA which he accused of engaging in political campaigns labelling him “an ANC deployee” and most recently a “blight on the judiciary”.

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