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Hlophe Denies Trying to Sway Concourt Decision

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Legalbrief | your legal news hub Saturday 25 September 2021 Hlophe denies trying to sway ConCourt decision Opposition parties have reacted with outrage to the latest allegations against Cape Judge President John Hlophe, with some calling for his impeachment. Hlophe has, however, denied the accusations against him, writes E-Brief News. Hlophe dismissed as 'utter rubbish' allegations that he attempted to influence the Constitutional Court's decision over search-and-seizure raids carried out by the Scorpions on properties of ANC president Jacob Zuma and French arms manufacturing giant Thint. 'I regard this as another ploy to damage my reputation,' Hlophe is quoted in the Saturday Star as saying. 'It is inconceivable that a single judge sitting in Cape Town can influence 11 judges in the highest court of the land. I must be a very powerful person.' He added: 'Moreover, judges are supposed to make decisions based on the facts before them and the law, and not be influenced by anybody,' he said. The National Prosecuting Authority's Tlali Tlali declined to comment. Full Saturday Star report (subscription needed) A Constitutional Court statement said that a complaint had been referred to the Judicial Services Commission (JSC) following allegations that 'Judge John Hlophe has approached some of the judges of the Constitutional Court in an improper attempt to influence this court's pending judgment in one or more cases'. They said that 'the complaint relates to the matters of Thint (Pty) Ltd v National Director of Public Prosecutions and Others (CCT 89/07), JG Zuma and Another v National Director of Public Prosecutions and Others (CCT 91/07), Thint Holdings (South Africa) (Pty) Ltd and Another v National Director of Public Prosecutions (CCT 90/07) and JG Zuma v National Director of Public Prosecutions (CCT 92/07)'. Full statement on Legalbrief Today site Additional report on Legalbrief Today site The two judges who were allegedly lobbied were Justice Bess Nkabinde and Judge Chris Jafta of the Supreme Court of Appeal, and who was appointed an acting judge in the Constitutional Court this year, according to The Sunday Independent. Speculation is rife that Hlophe has an eye on a Constitutional Court appointment. With Chief Justice Pius Langa expected to retire next year, the post of top judge is alleged to be the prize - especially if the new president, and not Mbeki, appoints the successor. Dikgang Moseneke, Langa's deputy, has burnt his bridges with the Zuma camp and it is rumoured that Hlophe could fill the breach. Marinus Wiechers, a retired University of SA law professor, said that the Hlophe complaint was the most serious crisis the judiciary had encountered: 'We are all concerned about the independence of the judiciary. In Zimbabwe the threat was from the outside, with the Zanu-PF Government interfering in the judiciary, but this was a "cancer from within",' Wiechers said. Full report in The Sunday Independent The cases referred to in the complaint were heard by the court in Johannesburg between March 11 and 14, and related to controversial search-and-seizure raids at properties belonging to Zuma in Gauteng and KwaZulu-Natal, as well as at the Durban office of Zuma's attorney Michael Hulley, on 18 August 2005, notes a report on the Mail & Guardian Online site. Zuma, Hulley and Thint have argued that they should be granted leave to appeal against an 8 November 2006 majority judgment of the Supreme Court of Appeal that upheld the raids. The raids were carried out two months after Judge Hilary Squires convicted Zuma's former confidante and financial adviser Schabir Shaik on two counts of corruption and one count of fraud in the Durban High Court. The corruption charges related to Shaik's attempt to solicit a R500 000-a-year bribe from French arms manufacturing giant Thales International (formerly Thomson CSF) for Zuma. Reacting to the latest furore, Cape Bar Council, chairperson advocate Rudi van Rooyen and vice-chairperson advocate Ashton Schippers called for Hlophe to stand down 'pending the determination of the complaint by the JSC'. 'As sad a day it is for the judiciary when one of its members behaves in a reprehensible way, it is heartening that the judges of the Constitutional Court have spoken out swiftly and unequivocally in condemning behaviour which is tantamount to an attempt to defeat the ends of justice.' Full report on Mail & Guardian Online site Cape Bar statement on Legalbrief Today site Hlophe could face impeachment, says a Sunday Times report. JSC spokesperson advocate Marumo Moerane said the commission would investigate the complaint after Hlophe had formally responded. 'If the JSC arrives at a finding that gross misconduct, incapacity or gross incompetence has taken place, it then refers that decision to Parliament, which will debate it, and if it agrees with the finding by a two-thirds majority, it refers the finding to the President.' Moerane said President Thabo Mbeki would have no discretion in the matter and would have to enforce Parliament's finding. Full Sunday Times report But the JSC is likely to have an urgent meeting about the allegations. According to a report in Beeld, the JSC's next scheduled meeting is only in October, but Secretary Vuyelwa Masanghwane confirmed that a decision on an urgent meeting would be made today. Langa, who heads the JSC, said a final decision was yet to be announced. Langa also declined to comment on whether he would withdraw himself from any investigations, seeing as judges of the Constitution Court under his control had made the complaint. Chairperson of the General Bar of SA Advocate Jannie Eksteen SC also called for an urgent inquiry. 'It seems only lawful that Hlophe be suspended pending the outcome of the inquiry,' he said. Full Beeld report No claim of improperly attempting to influence a pending judgment has ever been made against a judge in SA, and the fact that it has been made jointly by members of the highest court in a public statement, underlines the gravity of Hlophe's position, says a report in The Weekender. A number of complaints were previously made to the Judicial Commission about Hlophe's alleged improper behaviour but no action had been led against him. Senior lawyers described the previous complaints as 'impeachable matters'. The Constitutional Court's complaint is so serious that an impeachment investigation by the commission should be expected. Full report in The Weekender KwaZulu-Natal Judge President Vuka Tshabalala has reacted with shock and astonishment to the allegations against Hlophe. 'It never happens that a judge will go to another court and tell them what to do ... I think it is so ridiculous that it is unbelievable. I can't believe that it has happened,' he said. According to a report in The Mercury, he made it clear that he was not defending Hlophe, only that he found it unbelievable that something 'so astonishing, so out of the way and so irregular' could have occurred. 'If I said it was unlikely, I would be saying all the (Constitutional Court) judges are lying. It is something any normal judge would not do,' Tshabalala said. He said judges might discuss a case or approach another judge for an opinion on a matter, but that was how far it could go. However, he refused to comment on whether Hlophe should step aside until the matter was cleared up, saying: 'He knows what has happened; he can decide what he thinks he should do in the circumstances.' Full report in The Mercury (subscription needed) DA leader Helen Zille said the allegation 'shakes the very foundations of our constitutional democracy'. She said Hlophe's attempt to influence a Constitutional Court decision was the 'biggest test yet' to the independence of SA's judiciary. 'When a full bench of the Constitutional Court makes such allegations it is most serious, says a report on the Legalbrief Today site. This (complaint) would never happen without evidence ... The entire credibility of the Western Cape's legal profession is being brought into question,' she said. Zille said she believed that Hlophe should step aside pending the outcome of the JSC's investigations into his conduct. 'The big question to be asked is who is behind this. Why would a Judge President be prepared to risk his career? Who put Hlophe up to this,' asked Zille. Full report on Legalbrief Today site The IFP says Hlophe's departure from his position will help to restore trust in the judiciary. IFP spokesperson Koos van der Merwe said Hlophe was 'contaminating the excellent reputation' of the majority of High Court judges. He said the latest complaint against Hlophe was conclusive proof that he was not fit to hold the office of a judge of the High Court. 'The Constitutional Court views the matter in a very serious light and is clearly of the view that Hlophe has violated his oath of office and the provisions of the Constitution regarding the role and function of courts. Hlophe is an embarrassment to the Judiciary in general and to the Bench in particular,' he said. The IFP say it was necessary that the complaints against Hlophe be made public. Full IFP statement on Legalbrief Today site The ANC said that Zuma had nothing to do with Hlophe trying to influence members of the Constitutional Court. 'The issue has nothing to do with Mr Zuma,' ANC spokesperson Jessie Duarte said, according to a Mail & Guardian Online report. 'We are very startled by the comments of Zille because the statement issued by the judges totally indicates that none of the litigants knew this,' Duarte said. Full Mail & Guardian Online report In addition, Independent Democrats leader Patricia De Lille has called for Judge Hlophe to be impeached if the allegations prove true, says an SABC News report.
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