Just how gross was Hlophe’s misconduct? Five-day fight over JSC finding begins

It may be judge president John Hlophe today, but tomorrow it could be another judge.

So said Thabani Masuku SC in court on Monday, arguing why the court should set aside the Judicial Service Commission’s (JSC) decision that Hlophe committed gross misconduct.

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 improperly influence the outcome of cases then pending before their court related to corruption charges against former president Jacob Zuma. 

The complaint followed two separate 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 — was wrong. He also said that there was no case against Zuma and that the former president was being persecuted just as he, Hlophe, had been.

To Nkabinde, he “bragged” about his political connections and said people were going to lose their jobs once Zuma became president, according to the tribunal. To Jafta, after saying the SCA had got it wrong, he 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 improperly sought to influence Nkabinde and Jafta to violate their oaths of office. Its view was endorsed by the JSC in August, when it found, by majority, that he had committed gross misconduct.

But Hlophe says the JSC decision is unlawful on a number of grounds, including that the JSC’s meeting that took the decision was not properly constituted and that its decision was irrational. The case was heard by a full court of deputy judge president Aubrey Ledwaba, deputy judge president Roland Sutherland and judge Margie Victor.

Masuku, Hlophe’s counsel, argued that the JSC came to its decision using the “wrong test” for determining what judges may appropriately say to each other in private exchanges. He said the JSC had not taken into account that there was a presumption that judges were independent and had integrity.

Masuku said there were no written rules about what judges could and could not say to each other when talking privately. Instead, judges themselves regulated these conversations.

He said that at the Judicial Conduct Tribunal, Nkabinde and Jafta had testified that Hlophe had not tried to persuade them on what to decide in the Zuma/Thint cases and had not, in fact, been persuaded by what Hlophe had said. 

Once “the element of persuasion” was removed, all that remained was “remarks” on a pending judgment. If judges were to be found guilty of gross misconduct for remarks to colleagues on pending judgments, it would put them in an unenviable position, he said.

Michael Donen SC, for friend of the court the Black Lawyers Association, said the only rule against which Hlophe’s conduct could be tested was section 165 of the constitution, which says no one may “interfere with the functioning of the courts”. 

Donen distinguished between influencing and interfering, saying that Hlophe’s conduct did not meet the threshold of interfering. It was misconduct, but not gross misconduct, he said. On this he was closely questioned by deputy judge president Roland Sutherland. 

Sutherland said the facts before the tribunal were that when Hlophe approached Jafta and Nkabinde, “in both cases, he raised the issue which was critical to the appeal".

"To his friend [Jafta] he says ‘you are our last hope’. To the stranger [Nkabinde] he has arranged to meet to discuss notionally a point of law, he talks about the members of the Constitutional Court … ‘needing to understand our history’, which is a highly loaded phrase about which we can extrapolate if needs be, but I think all South Africans understand what that means. He refers to his association with ministers of state, and he says the person that is the subject of the appeal is about to become extremely powerful. And certain people are going to lose their jobs," said Sutherland.

He then asked Donen if the JSC took all these facts and, from them, concluded gross misconduct, on what basis would the high court reject that as irrational?

Donen responded that those facts only led to a finding of misconduct, not gross misconduct. He said there were also other facts, including that Hlophe had never said to Jafta or Nkabinde that they should not apply the law or go against the Constitution.

The case is set down to be heard over five days. On Tuesday, it is expected that the JSC will argue to defend its decision.