Judge John Hlophe hits back at tribunal’s ’misdirection’ in misconduct findings
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Cape Town – The Judicial Conduct Tribunal misdirected itself on numerous procedural and substantive issues, rendering its findings unjustified against Western Cape High Court Judge President John Hlophe.
This is according to a statement issued by Hlophe’s lawyer, Barnabas Xulu, late last night in response to the tribunal’s scathing findings against Judge Hlophe.
The tribunal found him guilty of gross misconduct.
His fate will be decided by the Judicial Service Commission (JSC), which has a final say on whether the ruling is accepted or dismissed.
The tribunal’s report stated that Hlophe breached sections of the Constitution when he tried to influence two justices of the apex court.
The ruling related to a complaint filed by 11 justices of the apex court in 2008 who claimed that Hlophe had attempted to influence Justice Chris Jafta and Justice Bess Nkabinde to rule in a particular manner in a pending judgment between the National Prosecuting Authority and former president Jacob Zuma.
Hlophe had visited Jafta in April 2008 and Nkabinde in March 2008. Hlophe had denied that his visits to the two had been an attempt to influence the outcome of the pending matter; he simply said it was part of legal discussions.
Hlophe had also laid counter-complaints against justices in the process.
The tribunal found that Hlophe had breached the provisions of section 165 of the Constitution in attempting to influence justices of the court to violate their oaths of office.
The tribunal’s report has been submitted to the chairperson of the Judicial Service Commission (JSC), Chief Justice Mogoeng Mogoeng.
The JSC will now deliberate over the findings and decide on Hlophe’s future.
Reacting to the tribunal’s report, Xulu said Judge Hlophe fundamentally disagreed with the factual and legal findings of the tribunal and will, in due course, address the appropriate forum on his contentions.
“There are further glaring anomalies in the tribunal decision worth mentioning. For example, without justification the acceptance of a change of a critical part of the evidence, some 12 years after the lodgement 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,” said Xulu.
He said the tribunal failed to deal with serious contradictions in the evidence of the witnesses who testified against Judge President Hlophe.
“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.”
Xulu said Judge Hlophe’s view was that the tribunal’s decision was not based on the evidence but considerations that were irrelevant to the facts.
“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 August 28, 2009 which was set aside on the basis of a technicality and not the merits of its findings on the evidence.”
He denied that Judge Hlophe set out to influence or persuade any judges of the Constitutional Court to violate their oath of office.
“The judge president is determined to vindicate his name and, in so doing, will demonstrate how this finding does not correctly reflect the law and is not based on the facts presented to it,” said Xulu.