Legalbrief | your legal news hub Saturday 25 September 2021

Crisis deepens as top judges debate Hlophe complaint

The Constitutional Court, under siege from the man it alleges improperly tried to influence two of its members, spent hours yesterday debating how to back up its explosive complaint against Cape Judge President - and the meeting will continue today, writes E-Brief News.

While the country's top judges were discussing the issue that has cast doubt on the credibility of the country's judiciary, it has emerged those same judges will soon have to consider overturning or confirming Hlophe's order to evict thousands of Western Cape squatters from their homes. What a report in the Cape Times describes as an urgent and politically-charged appeal against Hlophe's ruling, brought on behalf of thousands of Joe Slovo squatters, is scheduled to be heard on 21 August - the second case on the court's list of upcoming hearings. It will follow the increasingly volatile conflict between Hlophe and the court over as yet undetailed allegations that he attempted to lobby two judges to make pro- rulings, a sorry saga that seems likely to end with only one winner - Zuma himself. Full Cape Times report (subscription needed)

Although the meeting is seen as 'make or break', a report in Beeld quotes a source as saying 'any speculation that there is disagreement between the judges is unfounded and false'. The report makes the point that Justices and Chris Jafta - the judges Hlophe is alleged to have approached - did not contradict themselves or the other judges. The two apparently never said they would not testify before the JSC, but merely that they would not lay charges in their personal capacity. Both Nkabinde and Jafta attended yesterday's meeting. A Business Day report, however, quoting from their statement to the JSC, says they never intended to make a complaint, nor were they the 'complainant judges'. Nkabinde and Jafta also said they would make no further statement to the JSC. 'We wish to state that we are prepared to make only this joint statement, and no other.' Full Beeld report Full Business Day report

Some legal experts suggest the country is teetering on the edge of a constitutional crisis following Hlophe's allegation - made in a complaint to the Judicial Service Commission (JSC) - that SA's top judges are politically-motivated. Hlophe's complaint against the Constitutional Court's 11 judges also alleges they are guilty of threatening the independence of the judiciary. He said by publicly condemning him in a press release without lodging a proper complaint to the JSC, they jeopardised the search-and-seizure cases before them relating to ANC president Jacob Zuma and French arms company Thint that he was alleged to have tried to influence. A Cape Argus report notes that Hlophe's 15-page complaint was submitted before two of the judges he was accused of influencing said in a joint statement to the JSC that they had not lodged a complaint against the Judge President and did not intend to do so. Judge Craig Howie, the outgoing Supreme Court of Appeal president, recalled from leave to preside over the matter, has asked JSC members dealing with complaints against judges to advise whether the Constitutional Court's 'complaint' could be pursued, given that there was no evidence to support it. Hlophe, who took leave in the face of calls to step down, is expected to be informed today (Tuesday) of the JSC's decision. Full Cape Argus report

Nkabinde and Jafta revealed they had met Chief Justice and his deputy two days before the court made its claims against Hlophe . According to a report in The Mercury, they said they would not object to the Chief Justice or his deputy telling the JSC about that discussion. And Advocate Reggie Tokota SC - who assisted Nkabinde and Jafta in preparing their carefully worded statement to the commission - questioned media reports that the judges could be subpoenaed to give evidence. While pointing out that the commission could not legally compel anyone to testify before it, Tokota said he doubted that the judges would refuse to appear before the commission. 'I have not taken any instructions on this issue, but I do not believe that they would refuse to speak to the commission if they were invited to do so. 'The commission has not asked them to testify and they have not said they would not testify if asked to do so ...so talk of subpoenas appears to be somewhat spiteful.' For its part, notes a report on the News24 site, the JSC is concerned about press coverage of the matter, saying two things in particular caused its 'misgiving'. 'One is an apparent widespread disrespect for confidentiality,' it said, explaining that there had been public disclosure in the press of a communication addressed by Nkabinde and Jafta to the JSC and which had been copied only to the Deputy Chief Justice. There had been similar disclosure of a communication addressed by the JSC chair to the Chief Justice and judges of the Constitutional Court. Full report on the News24 site Full report in The Mercury (subscription needed) Hlophe held nothing back in his attack on the Constitutional Court. 'How is the public, in particular the litigants (Zuma and Thint) that I am alleged to have spoken on behalf of, to trust the work of the judiciary if judges can sacrifice the Constitution to vilify a colleague,' he asked in his complaint to the JSC. 'I hope that I am not correct that the litigants, who are subject to the pending decision that I am alleged to have improperly sought to influence, can continue to trust the judges to adjudicate the matters before them in a manner that is consistent with the judicial office, fairly and impartially without fear or favour,' he added, according to a report in the Cape Argus. Hlophe said the manner in which the courts had treated him 'must concern the public and the litigants because it violates the core principles of the judicial functions'. 'From the perspective of an uninformed member of the public, or a litigant awaiting the court's decision, it would appear that the judges of the court can act contrary to the Constitution and vilify a person in public without recourse to due process,' the Hlophe complaint says. He added he had made the complaint with full appreciation 'that nothing will be a (more) significant threat to the independence of the judiciary than judges complaining against each other'. Full Cape Argus report

The Black Lawyers Association (BLA) has called for swift action against the top judges. It called for the judges involved to step down or face impeachment if it is found they acted maliciously against Hlophe. According to a report in the Sunday Times, BLA president Andiswa Ndoni said the JSC must urgently deal with Hlophe's complaint. 'This whole saga has disgraced the profession.' The judge's initial complaint of impropriety against Hlophe centres on four cases - all related to applications by ANC president Jacob Zuma, his attorney Michael Hulley, and French arms companies Thint and Thint Holdings Southern Africa - for leave to appeal against three 2007 Supreme Court of Appeal judgments confirming the validity of search warrants used to gather information against Zuma ahead of his corruption trial set for August. The matters were heard by the court in March, but judgment had been reserved. Full Sunday Times report

The action of the judges is defended by a prominent legal academic, who argues they had no option but to go public with their complaint to the JSC. University of the Western Cape law professor Pierre de Vos said the judges were bound by the Constitution's requirement of transparency and openness on a matter clearly in the public interest. De Vos' comment came against the background of black legal organisations closing ranks around Hlophe. Prominent among them was Advocates for Transformation (AFT) chairperson, Advocate Patric Mtshaulana, who is quoted in a Mail & Guardian Online report as saying: 'One must distinguish between the complaint that has been put (forward) and the manner in which that was done. It was not appropriate for the Constitutional Court to have issued a statement in which they say a complaint has been issued when in fact they are still preparing a complaint.' Full Mail & Guardian Online report

The controversy illustrates the political polarisation of the legal system, suggest legal academics quoted in a report in Die Burger. Emeritus Professor Marinus Wiechers is quoted as saying the allegations of a dispute between the judges of the Constitutional Court is evidence of opportunistic exploitation to distract the attention from the seriousness of the allegations against Hlophe. Professor Tom Coetzee, of North West University, said there was a 'seemingly deliberate misinterpretation' of the letters written by Justices Bess Nkabinde and Chris Jafta to the JSC. 'All they did was to repeat what they said to Chief Justice Pius Langa,' Coetzee said. Full report in Die Burger

And an editorial in The Sunday Independent suggest there's 'something strange' in the latest turn of events. Arguing that if it is reasonable to believe that the leaders of the Constitutional Court - Langa, Moseneke, and O'Regan - thought very hard and sifted the evidence before they became parties to a statement upbraiding Hlophe, then 'there is indeed something strange about the statement of Nkabinde and Jafta, the justices whom Hlophe allegedly tried to sway' to look favourably on President-in-waiting Jacob Zuma's appeal to the court. It points out the two have told the JSC that they did not intend to make a complaint against Hlophe, that they will not do so, and that they will say nothing against him, adding 'somebody appears to have got something wrong. What this means is that, if the Hlophe matter is pursued, Nkabinde and Jafta will have to tell the commission what they told their colleagues at the Constitutional Court that caused them to take the decision to issue the statement critical of Hlophe. If they say that what they said to their colleagues was not worthy of such a fuss, then they are going to have to listen to O'Regan and Moseneke explain why they, to the contrary, thought it was an extremely serious matter.' Editorial in The Sunday Independent (subscription needed)

DA leader Helen Zille has strongly criticised Hlophe. Writing in SAToday, her weekly newsletter on the DA Web site, Zille said the possibility that a Judge President attempted to improperly influence Constitutional Court judges for political ends had shaken faith in the independence of the judiciary and entire constitutional order. 'If Judge Hlophe did attempt to sway Constitutional Court judges, it will take time and conscious effort to restore public trust in the judiciary. If he did not do so, it means the full Bench of the Constitutional Court lied in its statement - which, needless to say, would throw us into a full-blown constitutional crisis.' Full SAToday article