Hlophe tribunal: Is the complaint valid?

2013-09-30 15:40

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The judicial-conduct tribunal tasked with determining whether Western Cape Judge President John Hlophe tried to influence justices on behalf of president Jacob Zuma has become tangled up in a legal catch-22.

This was aptly summed up by Hlophe’s top-flight English lawyer, Courtenay Griffiths QC, who this morning raised a technical defence to the continuation of the tribunal.

“How do we proceed now without a valid complaint when the only two individuals who can provide the complaint say: ‘We want to see the complaint’.”

Griffiths was referring to the fact that justices Bess Nkabinde and Chris Jafta, the two justices Hlophe allegedly tried to influence on behalf of Zuma, have indicated that they do not consider themselves obliged to testify at the tribunal.

Selby Mbenenge, who is representing Nkabinde and Jafta, has questioned whether there is a valid complaint before the tribunal.

At the heart of this confusion is a requirement that was added to the Judicial Service Commission Act by an amendment which came into effect in 2010.

It states that complaints of judicial misconduct must be lodged by affidavit or affirmed statement.

Nkabinde and Jafta’s complaint in 2008 was not in the form of an affidavit, but was instead contained in a statement by the judges of the Constitutional Court, which was subsequently penned by then Chief Justice Pius Langa.

The JSC has since last year proceeded with Hlophe’s case under the new provisions and is therefore bound by them, argued Griffiths.

Gilbert Marcus, who is representing the other justices of the Constitutional Court who were party to the statement, argued that the statement of complaint had confirmatory statements from other judges attached and was subsequently confirmed by six of them under oath in court and before the JSC.

“The complaint made by all the justices of the Constitutional Court was made in compliance with the rules then prevailing, which did not require a statement under oath,” said Marcus.

He said the notion that the new requirement about complaints could invalidate all the complaints introduced before the requirement was introduced was “untenable”.

But Griffiths hit back at the argument that the evidence of the other judges, which has never been subjected to cross-examination, could be used, saying it was hearsay evidence.

Griffiths said the evidence of the other judges was “parasitic” in that it “fed” on the evidence of Nkabinde and Jafta, who had mentioned Hlophe’s visits to them to other judges of the court.

Griffits also said they would “specifically like Deputy Chief Justice Dikgang Moseneke to be here ... and we do intend to cross-examine the justice about these matters”.

Hlophe’s alleged attempt to influence the justices was brought to the attention of Moseneke by two other justices of the court.

Griffiths said they would like to ask Moseneke about minutes of a meeting where Nkabinde and Jafta reportedly agreed to be party to the joint complaint when they had previously written a letter stating they did not intend to lodge a complaint.

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