Hlophe ‘misconduct’: Jafta, Nkabinde stall matter

2014-10-06 19:37

By Niren Tolsi

Western Cape judge president John Hlophe’s misconduct case is set for a further hold-up with Constitutional Court justices Bess Nkabinde and Chris Jafta deciding to appeal the South Gauteng High Court’s ruling that the disciplinary tribunal investigating Hlophe was legal.

The decision to take the matter to the Supreme Court of Appeal (SCA) was confirmed to City Press by Nkabinde and Jafta’s lawyer, advocate Bantubonke Tokota today.

The appeal means the case of “gross misconduct” lodged against Hlophe by all the judges of the Constitutional Court in 2008 will continue on its painfully circuitous path without any immediate resolution.

Judicial Service Commission (JSC) spokesperson CP Fourie said the tribunal had been discussed during a closed sitting of the commission in Cape Town today, and that its commencement date was to be left up to tribunal chairperson, retired judge Joop Labuschange.

Labuschange’s decision will now be stalled pending a decision from the appellate court and a potential appeal to the Constitutional Court.

The so-called “Hlophe matter” is considered one of the biggest crises to affect South Africa’s post-apartheid judiciary with a possible impeachment hanging over the judge president.

The complaint lodged by the country’s highest court against Hlophe related to arms deal-related corruption and fraud charges levelled against President Jacob Zuma - then an ordinary citizen – who had approached that court in the Zuma/Thint matter asking it to rule on the legality of a Scorpions raid on his lawyer’s office to obtain documents.

The judges of the Constitutional Court had alleged that Hlophe had improperly sought to influence their verdict in the matter by approaching Nkabinde and Jafta in 2008.

Hlophe had allegedly approached Jafta in his chambers, commented that a previous appellate court ruling on the Zuma/Thint matter was incorrect and told him that he was “sesithembele kinina” (which roughly translated from isiZulu means “you are our last hope”).

It is alleged that Hlophe had also approached Nkabinde, who was writing the court’s judgment, and indicated that he had a “mandate” to act before raising the issue of client-lawyer privilege in relation to the Zuma/Thint case.

Both Nkabinde and Jafta had, together with the rest of the Constitutional Court Bench, co-signed the complaint lodged by the late former Chief Justice Pius Langa with the JSC. This prompted a counter-complaint by Hlophe against the Constitutional Court judges alleging that the manner of their initial complaint had impinged on his right to dignity as a judge.

The matter has travelled a circuitous path since then with the initiation of several investigations, disciplinary hearings and court cases challenging decisions not to investigate Hlophe. In September 2012 the Judicial Conduct Committee, a sub-committee of the JSC, found that Hlophe was, prima facie, guilty of impeachable gross miss conduct and recommended that a tribunal be set up.

The Labuschange tribunal was set up last year but its work was halted after Nkabinde and Jafta had filed an application questioning the legality of its procedures and decisions. That application was dismissed by the high court - a decision which the judges now intend appealing.

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