Judicial Conduct Tribunal recommends impeachment of John Hlophe for gross misconduct

11 Apr 2021

The JSC's Judicial Conduct Tribunal 'unanimously found' that 'on objective and proper consideration' of facts and probabilities, Hlophe’s conduct breached Section 165 of the Constitution 'in that he improperly attempted to influence the two Justices of the Constitutional Court to violate their oaths of office'

The Judicial Conduct Tribunal has made short shrift of Western Cape Judge President John Hlophe’s attempt at smearing two Constitutional Court judges for perjury and has recommended that he face impeachment on charges of gross misconduct.

It also condemned Hlophe’s conduct in relation to his accusations that former Chief Justice, Pius Langa, and Deputy Chief Justice, Dikgang Moseneke, whom Hlophe had accused of “manipulating facts” and harbouring a “political” motive for getting “rid” of Hlophe.

Chair of the tribunal panel, Judge Joop Labuschagne, stripped away Hlophe’s convoluted defence stating “throughout the 12-year period, the complaint has simply been that he [Hlophe] had sought to improperly influence the outcome of the Zuma-Thint application pending in the Constitutional Court. Justice [Bess] Nkabinde and Justice [Chris] Jafta never changed their version of their encounters with Judge President Hlophe.”

“What was in dispute”, said the panel, “was the effect of Judge President Hlophe’s conduct in relation to the two Justices”.

The tribunal consisted of Judge Joop Labuschagne, Judge Tati Makgoka and attorney Nishani Pather and released its much-anticipated report late on Saturday night.

It “unanimously found” that “on objective and proper consideration” of facts and probabilities, Hlophe’s conduct breached Section 165 of the Constitution “in that he improperly attempted to influence the two Justices of the Constitutional Court to violate their oaths of office”.

Tribunal Decision 10 April 2021

Hlophe’s conduct had also “seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court” as well as threatening “public confidence in the judicial system”.

The report has now been submitted to the Chairperson of the Judicial Service Commission (JSC) which will “in due course consider the report”.

The tribunal found that the suggestion by Hlophe that Jafta and Nkabinde had been pressured by Langa and Moseneke to lodge the complaint was rejected “with no difficulty”.

There was also “no merit” to Hlophe’s argument that counsel for the two constitutional court judges were not entitled to participate in the tribunal and neither were those representing justices of the Constitutional Court.

“Their participation, and them being represented by counsel, has been accepted since 2009. Until this argument was raised during the tribunal sitting in December 2020, Judge President Hlophe has never once, in the 12 years of this complaint, questioned the participation of counsel for the Constitutional Court.”

With regard to Hlophe’s assertion that the charge itself had “evolved” over time, the tribunal found:

...“whether one refers to the 2013 or 2020 notice, the facts which are alleged to constitute the complaint, or the summary of the evidence substantiating the complaint have remained the same, namely, that he has sought to improperly influence the outcome in Zuma-Thint matters after the matters had been heard and judgment reserved. Nothing could be clearer.”

With regard to Hlophe’s suggestion that the delay in bringing the complaint to fruition disadvantaged him, the tribunal found that Hlophe himself was in part to blame for this.

“We have chronicled his own litigation and occasions on which he sought postponement of the proceedings of this tribunal.

“All these contributed to the delay. It is opportunistic and untenable for Judge President Hlophe, under the circumstances, to advance the delay as the basis of some prejudice.”

Considering Hlophe’s argument that there was “no law” preventing him from discussing legal matters with fellow judges, the tribunal found that it was “the lived experience of members of the tribunal who are members of the legal profession, as judges and practising attorneys” that it was a breach of ethics to do so.

“That principle is deeply rooted in the legal profession. It is instilled through years of practice, either as an advocate or an attorney, from whose ranks most judges are drawn.”

With elevation to the judiciary, the panel said, legal professionals “carry it along”.

“We do not know whether Judge President Hlophe ever practised law as either an advocate or an attorney prior to his elevation. However, by 2008 when the impugned conduct occurred, he had been a judge of the high court for over 13 years, five of those as a Judge President. He is expected to have been aware of it, and on balance, he was.”

That Hlophe had told Nkabinde that “there was no case against” Zuma after declaring that Zuma was likely to become president of the republic was “revealing” said the panel.

“It also belies his assertion that he only discussed legal principles, and not the facts of the case.”

However, for Hlophe to have told Nkabinde that there was “no case against Zuma” the Judge President had “ventured into the merits” the report found.

“When viewed in this way, Judge President Hlophe, on his own version, discussed both the merits and the legal principles with Justice Nkabinde.”

It was unclear “why Judge President Hlophe considered it his duty, among all the judges in the country, to approach the Justices of the Constitutional Court to discuss the issue while they were still considering judgment,” the panel found.

Hlophe’s allegation that Chief Justice Pius Langa and DCJ Moseneke were part of a “sinister plot” against him were “very serious”.

“Allegations of dishonesty against judges are serious. Thus, they should never be made unless there is evidence to support them”.

While Hlophe had accepted the version of the Constitutional Court Justices that their conduct had been inspired “by their desire to protect the institutional integrity of the court” the Judge President had persisted “with the insinuations”.

“We consider it our duty to vindicate the integrity of the Justices of the Constitutional Court, in particular Chief Justice Langa, Deputy Chief Justice Moseneke, Justice Nkabinde and Justice Jafta, whose integrity has been called into question by Judge President Hlophe’s unfounded and scurrilous attacks. They acted with honour to protect the institutional integrity of the apex court of our Republic” the tribunal found.

The tribunal also unanimously found that “Judge President Hlophe is guilty of gross misconduct as envisaged in Section 177 of the Constitution”. DM

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