Hlophe's fate in the hands of the ANC
The fate of Western Cape High Court Judge President John Hlophe, who has been found guilty of gross misconduct by the Judicial Conduct Tribunal (JCC), is now in the hands of the politicians.
The head of the Western Cape High Court Bench has been the subject of a 12-year inquiry into whether he tried to improperly influence the Constitutional Court in a pending judgment against former President Jacob Zuma and French arms dealer Thint.
His guilt, though, doesn’t mean automatic impeachment.
First the JSC – itself subject to political machinations – has to confirm the tribunal’s finding. And if it does, as surely it must, the matter will be in the hands of Parliament, and, as in the case of the Public Protector, a two-thirds majority will be needed to impeach him.
His fate in all probability will be decided by the winning side in the factionalised ANC ... and, as a Business Day report points out, as was seen by the deeply factionalised vote on whether to set up a parliamentary committee of inquiry into Public Protector Busisiwe Mkhwebane’s fitness to hold office, the ANC is unlikely to have a united voice.
The JCC made short shrift of Hlophe’s attempt at smearing two Constitutional Court judges for perjury.
It also condemned Hlophe’s conduct in relation to his accusations that former Chief Justice, Pius Langa, and Deputy Chief Justice, Dikgang Moseneke, whom Hlophe had accused of ‘manipulating facts’ and harbouring a ‘political’ motive for getting ‘rid’ of Hlophe, notes Marianne Thamm in the Daily Maverick.
Chair of the tribunal panel, Judge Joop Labuschagne, stripped away Hlophe’s convoluted defence stating ‘throughout the 12-year period, the complaint has simply been that he (Hlophe) had sought to improperly influence the outcome of the Zuma-Thint application pending in the Constitutional Court. Justice (Bess) Nkabinde and Justice (Chris) Jafta never changed their version of their encounters with Judge President Hlophe.’
‘What was in dispute’, said the panel, ‘was the effect of Judge President Hlophe’s conduct in relation to the two justices’.
The tribunal consisted of Labuschagne, Judge Tati Makgoka and attorney Nishani Pather.
It ‘unanimously found’ that ‘on objective and proper consideration’ of facts and probabilities, Hlophe’s conduct breached Section 165 of the Constitution ‘in that he improperly attempted to influence the two justices of the Constitutional Court to violate their oaths of office’.
Hlophe’s conduct had also ‘seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court’ as well as threatening ‘public confidence in the judicial system’.
The tribunal found that the suggestion by Hlophe that Jafta and Nkabinde had been pressured by Langa and Moseneke to lodge the complaint was rejected ‘with no difficulty’.
Hlophe has asserted the charge itself ‘evolved’ over time, but the tribunal found: '…whether one refers to the 2013 or 2020 notice, the facts which are alleged to constitute the complaint, or the summary of the evidence substantiating the complaint have remained the same, namely, that he has sought to improperly influence the outcome in Zuma-Thint matters after the matters had been heard and judgment reserved. Nothing could be clearer.’
With regard to Hlophe’s suggestion that the delay in bringing the complaint to fruition disadvantaged him, the tribunal found that Hlophe himself was in part to blame for this, points out the DM report.
‘We have chronicled his own litigation and occasions on which he sought postponement of the proceedings of this tribunal. All these contributed to the delay. It is opportunistic and untenable for Judge President Hlophe, under the circumstances, to advance the delay as the basis of some prejudice.’
Considering Hlophe’s argument that there was ‘no law’ preventing him from discussing legal matters with fellow judges, the tribunal found that it was ‘the lived experience of members of the tribunal who are members of the legal profession, as judges and practising attorneys’ that it was a breach of ethics to do so. That principle is deeply-rooted in the legal profession. It is instilled through years of practice, either as an advocate or an attorney, from whose ranks most judges are drawn.’
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
