Judicial Service Commission rejects Hlophe’s ‘absurd’ arguments

It was irrelevant that John Hlophe had failed to influence Constitutional Court judges to find in favour of former president Jacob Zuma, the Gauteng high court heard on Tuesday. Just that he tried made him guilty of gross misconduct, said counsel for the Judicial Service Commission (JSC) Vincent Maleka SC.

Maleka was addressing a full bench of the court on the second day of the Western Cape judge president’s case to set aside a finding of gross misconduct by the JSC. In August last year the JSC, by majority, decided to refer Hlophe to parliament for possible impeachment, the first referral of its kind in SA’s democratic history.

The gross misconduct finding 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 related to corruption charges against Zuma that were pending before their court.

In April last year a Judicial Conduct Tribunal (JCT) found Hlophe had breached section 165 of the constitution in that he had improperly attempted to influence two ConCourt judges to violate their oaths of office and that his conduct interfered with the independence of the highest court.

The tribunal decision was endorsed by the JSC in August. Yesterday Hlophe’s lawyers argued the JSC had applied the wrong law in making its decision and that Hlophe had only been making “remarks” about the pending cases. They argued the evidence was that he had not sought to persuade the two judges he had approached, nor had they been persuaded.

But Maleka said justice Chris Jafta had testified that the impression he had got from Hlophe’s visit had been that the judge president was looking for a different outcome to the Supreme Court of Appeal (SCA) judgment (one the Constitutional Court was at the time deciding whether to agree with).

“On these facts alone there was an attempt to improperly influence,” he said.

He said the argument that an attempt would not constitute gross misconduct unless it was successful was “absurd in the extreme”. Imagine if a judge tried to bribe another judge, he suggested. That the target of the bribe rebuffed the attempt did not make the conduct of the bribing judge any less egregious, he added.

Gilbert Marcus SC, who represented the Constitutional Court justices who made the 2008 complaint, said it was “astonishing” for Hlophe’s lawyers to argue there was no evidence suggesting he had tried to persuade the two justices how the Zuma/Thint cases should be decided because the uncontested evidence — “indeed, the evidence from the JP himself” — went in “precisely the opposite direction”.

Marcus said uncontested evidence included that both times Hlophe had visited the Constitutional Court — to see justice Jafta, then acting, and justice Bess Nkabinde — he had been the one to raise the Zuma/Thint cases; Hlophe had both times said the legal issue of privilege — central to the case — had to be decided properly; had both times said the SCA had got it wrong; and had expressed “strong views” on the case.

Marcus also said the evidence of premeditation on Hlophe’s part was “plain and unmistakable”. He described how judge Nkabinde had told judge Jafta that she had received a call from Hlophe ahead of his visit and how Hlophe had said he wanted to visit her to discuss the issue of privilege. This then triggered in Jafta’s mind Hlophe’s earlier visit to him. He then warned Nkabinde that Hlophe may raise the Zuma/Thint cases. Marcus said all of this evidence was not contested in cross-examination by Hlophe.

Marcus also said it was “unworthy” of Hlophe’s counsel to argue that there were no rules regulating what judges could say to each other in private conversations.

He cited the constitution, the UN basic principles on the independence of the judiciary, the Bangalore Principles of Judicial Conduct, guidelines for judges published in the South African Law Journal in 2000 and the Constitutional Court judgments of de Lange v Smuts and Van Rooyen v S.

“We are dealing with a rule that is absolutely intrinsic to the judicial function,” he said.

Earlier, Tembeka Ngcukaitobi SC, also for the JSC, took on another aspect of Hlophe’s case — that the meeting of the JSC that took the gross misconduct decision was improperly constituted. Hlophe’s argument was that it was improper because neither chief justice Mogoeng Mogoeng nor deputy chief justice Raymond Zondo was there. Nor was the president of the SCA, Mandisa Maya, nor 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 leaders of the SCA. On Monday, Hlophe’s counsel, Thabani Masuku SC, argued that these delegations were unlawful and the meeting could be set aside on that basis.

Ngcukaitobi argued that all the relevant judgments said if there was a good justification for these commissioners not 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 at the meeting. Moreover, if Khampepe and Mbha were disallowed, the JSC would have been inquorate, he said.

Ngcukaitobi said the arguments made by Hlophe would lead to the “absurd outcome” of a state of complete 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.”

The case continues on Wednesday.