Pretoria - Western Cape Judge President John Hlophe has been urged to appeal against the findings of the tribunal’s ruling against him because they smacked of “political posturing” and the drive to finalise a long-standing matter at the expense of due process and individual rights.
According to political and legal commentator Professor Sipho Seepe, Judge Hlophe should not take the matter “lying down” because of the history of the case brought against him by the Constitutional Court justices, the length it took to finalise it, and the current state of the judiciary where members make “political pronouncements” on the Bench.
Speaking to Pretoria News last night, Seepe also warned that the Hlophe case might trigger a constitutional crisis because most of the justices who might end up hearing it were themselves complainants. He added that it must be understood in the context of the political environment in 2008, when Judge Hlophe, who was perceived to be sympathetic to former president Jacob Zuma, was considered a frontrunner to become the next chief justice.
Seepe said Judge Hlophe should look at the tribunal, and the people who heard his case, and appeal, in terms of the notion that all law or conduct that is not consistent with the Constitution is invalid.
“There might be a good reason for him to want to do it because the case is political now. There have been many instances where our judges have made political statements, and even the Constitutional Court itself has behaved like a kangaroo court,” Seepe said.
“When you have the simplest case of JZ (Jacob Zuma), which has a notion of a kangaroo court. You have a Constitutional Court entertaining a matter and pretending that JZ has not filed a case against (Deputy Chief Justice Raymond) Zondo’s refusal to recuse himself in the high court. The simplest thing that the Concourt should have done when Zondo approached it, is to first verify whether these rumours are true that your recusal has been requested. But the court chose to pretend that the process was not there.”
Seepe was reacting to the Judicial Conduct Tribunal's findings against Hlophe. Hlophe was found 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 Judge 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 Judge Hlophe had attempted to influence Justice Chris Jafta and Justice Bess Nkabinde to rule in a particular manner in a pending judgment between the NPA and Zuma.
Judge Hlophe had visited Justice Jafta in April 2008 and Justice Nkabinde in March 2008. Judge 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.
The tribunal matter was delayed over the years due to legal matters related to the original complaint laid by the justices. Judge 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 apex court to violate their oaths of office.
"His conduct seriously threatened and interfered with the independence and impartiality, dignity and effectiveness of the Constitutional Court. His conduct threatened public confidence in the judicial system," the tribunal said.
Judge Hlophe was guilty of gross misconduct as envisaged in section 177 of the Constitution, the tribunal said.
Seepe said the tribunal’s findings against Judge Hlophe should be seen in the context of the succession battle to become the next chief justice, which pitted him against former Constitutional Court Justice Dikgang Moseneke.
“I mean here is a farce, for instance. You have two judges who said they were approached. Then you have two people who were not even there who bring a case against Judge Hlophe. I mean it’s almost like me and you observe something and the whole community goes and opens a case against somebody even if they were not party to the conservation. It’s a matter that should have been dealt with by Nkabinde and Jafta.
“But you just locate this within the political dynamics that were taking place at the time.”
Justice Moseneke, Justice Nkabinde and the spokesperson of the Office of the Chief Justice, Nathi Mncube, could not be reached for comment last night.
Judge Hlophe’s lawyer, Barnabus Xulu, said late last night: “We will only issue a short statement tomorrow after we consulted and considered the JSC tribunal decision.”