Judges in a sticky fix

2013-10-06 14:00

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Hlophe matter becoming ‘highly problematic’ at Constitutional Court.

There is growing disquiet in the top ranks of the judiciary over this week’s startling developments in the misconduct complaint into Western Cape Judge President John Hlophe.

City Press has learnt from a reliable judicial source that the position taken by Justices Chris Jafta and Bess Nkabinde this week was “creating a lot of tension and unhappiness” between justices of the Constitutional Court, South Africa’s highest court.

The source said the Hlophe matter was becoming “highly problematic”.

Nkabinde and Jafta were the justices who Hlophe allegedly tried to sway in favour of President Jacob Zuma.

Nkabinde and Jafta are not, however, individual complainants in the matter, electing instead to be party to a joint complaint against Hlophe by all the justices of the court at the time.

Excluding Nkabinde and Jafta, there are still three justices on the Constitutional Court Bench who were party to the joint complaint, including Deputy Chief Justice Dikgang Moseneke.

On Thursday, retired Judge Joop Labuschagne, the president of the judicial conduct tribunal investigating the complaint against Hlophe, delivered a unanimous finding by the three-person tribunal, which dismissed objections to its continued existence.

But it has been the new position adopted by the lawyers representing Nkabinde and Jafta that have started to raise eyebrows in judicial and legal circles. (See sidebar)

Advocates Selby Mbenenge and Bantubonke Tokota have argued a technical legal point which would in effect see Hlophe walk away scot-free.

Mbenenge summarised this aptly when he said the tribunal “must pack and go, all of us”.

A source who is very close to one of the other complainant justices said this divergence had been a “complete surprise” to the other justices and was a “disconcerting” development.

Mbenenge and Tokota this week argued that Hlophe’s case should have been dealt with under the old regulatory framework that was applied before an amendment to the Judicial Service Commission Act came into effect.

But Mbenenge and Tokota argued that even if the matter had been dealt with under the old rules, those rules had never been gazetted, as required, and were therefore invalid.

Although the tribunal dismissed these technical arguments on Thursday, the legal team representing Jafta and Nkabinde has indicated that they would apply to the courts to review the finding.

In the wake of these developments, a senior and highly respected judicial source, who asked not to be named, was critical of the stance taken by Jafta and Nkabinde.

“I don’t think it behoves a judge to argue a technical point. They must decide whether justice requires them not to go on (with the complaint) and they should do what is necessary in terms of the requirements of justice.”

The source said there was a “difference between ordinary litigants and judge litigants”.

“Ordinary litigants can take every point they want in their favour, but once you’re a judge you need to litigate principally. You cannot litigate technically.”

The source said he felt that Nkabinde and Jafta were left with two choices in the matter because “they had painted themselves into a corner”.

“If they continue to feel (Hlophe) has done a bad thing, sufficient for prosecution, they have a duty to take a position against any technical point that may be taken, to leave no stone unturned in ensuring the (prosecution).

“If, on the other hand, they have come to the conclusion that they shouldn’t have done what they did – that after a passage of time things weren’t so bad and they changed their minds – then they must be honest enough to say they have changed their minds.”

A top Johannesburg senior counsel agreed with this assessment.

“If the story they (Nkabinde and Jafta) told the JSC at its 2009 hearings is true, then it indicates very serious misconduct by Hlophe and they have a moral and ethical duty to place that evidence before the tribunal.”

Another advocate said the conduct of the matter would be critical from the “point of view of public perceptions of the justices”.

“Two sitting Constitutional Court justices taking technical defences in order to avoid something is, in itself, deeply disconcerting.”

The tribunal has been postponed to Tuesday.


Justices Chris Jafta and Bess Nkabinde testify at the Judicial Service Commission (JSC) hearings into the complaint against John Hlophe in 2009. (Testimony not under oath and no cross-examination was conducted.)

Jafta is asked why he didn’t want to make an individual complaint to the JSC: What I expected to happen was, having indicated my stance to the chief justice and deputy chief justice, whatever complaint that was going to be taken forward as a collective complaint, would have to be led by the chief justice and the deputy chief justice, I was willing to confirm that what has taken place in the conversation between me and the JP (Hlophe).

Jafta on whether he was unduly influenced into being part of a collective complaint: It is not correct. We (Jafta and Nkabinde) were willing to participate.

Once it had been explained clearly, the distinction between, on the one hand the interest of an individual judge, and the integrity of the institution on the other hand, we were willing to participate in the complaint at that level so as to protect the integrity of the Constitutional Court.

Nkabinde on why she did not want to be an individual complainant against Hlophe: Mr Commissioner, I think in retrospect, one could have done that.

This thing happened at the time when one was busy doing all sorts of things.

My mind was not clear at the time as to really what is the right thing to do, and given that complexity, I didn’t see it very clearly.

Nkabinde is asked if she was a willing participant in the collective complaint of all the Constitutional Court justices: Oh yes, I didn’t have a problem.


Advocate Selby Mbenenge and Advocate Bantubonke Tokota, representing Justice Jafta and Nkabinde at the judicial conduct tribunal this week.

Mbenenge: The justices are entitled to merely raise a defence that they are not obliged to subject themselves to these proceedings, which are a nullity, by reason thereof that the relevant regulatory framework upon which the proceedings are predicated is a nullity.

Tokota on what he called a “killer point” for the tribunal: The Supreme Court of Appeal (SCA) said that a subcommittee of the JSC got it all wrong by not allowing cross-examination.

So (the SCA said) go back and call those witnesses, and allow them to be cross-examined.

What should have happened is that matter should have been referred back to that subcommittee, not to start the matter de novo (from the beginning).

Mbenenge: Viewed from whatever light, our submission is that we must pack and go, all of us.

There is nothing to postpone if this tribunal has no jurisdiction.

We must all pack and go.

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