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Hlophe Tribunal 2018

Judicial Conduct Tribunal for Judge President John Hlophe

Tribunal Meeting: 2 July 2018

The Judicial Conduct Tribunal was scheduled to begin on Monday 2 July 2018. The Tribunal members and counsel convened at the Park Inn Hotel, in Sandton. Justices Bess Nkabinde and Chris Jafta were also present as they had made themselves available to be called as witnesses. Judge President Hlophe was not present.

As the meeting convened the chairperson of the Tribunal, Judge Labuschagne, said that Tribunal member Judge Musi had a prepared statement to make. In his statement Judge Musi said that the Tribunal had received an urgent affidavit from Judge President Hlophe calling on Judge Musi to recuse himself due to some disparaging remarks he had allegedly made about Hlophe in 2017. Judge Musi denied these allegations but stated that in light of the circumstances he was recusing himself from the Tribunal.

Mail and Guardian quotes Judge Musi as saying;

Having considered the manner in which this whole issue has unfolded, the fact that Judge President Hlophe called me and made certain ex parte communications to me without having the other parties there, the interests of justice and obviously the interests of the judiciary — I do not think the judiciary needs this at this stage.”

Judicial Conduct Tribunals are made up of three members, and as Judge Musi has recused himself, the Chief Justice will now have to appoint another judge to sit on the Tribunal. The Tribunal cannot continue until this new member is appointed.

Judge Labuschagne has postponed the Tribunal sine die (which means that the date of the next hearing has yet to be determined).

Watch the video of the Tribunal meeting here:

 

Who is John Hlophe?

John Hlophe is the current Judge President of the Western Cape Division of the High Court. This makes him the most senior Judge in the Division. He was appointed to this position in 2000 and will remain the Judge President until he retires.

Hlophe studied law at the University of Natal, the University of Fort Hare and Cambridge University. He taught law at the University of Transkei before being appointed to the bench.

He was appointed as a judge in 1995 and, at the age of 36, was the first black judge to be permanently appointed to the Western Cape High Court. He was also the first full-time academic to be appointed as a High Court Judge. He was appointed as Judge President in 2000.

Since becoming Judge President, Hlophe has been involved in a number of controversial matters including:

What is a Judicial Conduct Tribunal?

When the Judicial Service Commission (JSC) receives a complaint regarding a judge that it considers serious it will form a Judicial Conduct Committee to assess the complaint. If the Judicial Conduct Committee finds that the complaint requires further investigation it will recommend to the JSC that a Judicial Conduct Tribunal is established in order to properly deal with the matter.

A tribunal comprises two judges and a non−judicial member taken from a list approved by the Chief Justice (and with the Justice Minister’s approval). The tribunal enquires into the allegations and submits a report of its findings to the JSC. The respondent is entitled to attend the tribunal‘s hearing and to have legal representation.

The Chief Justice has appointed Judge Labuschagne as President of this tribunal.

For more details on this procedure you can read the Rules made in terms of Section 25(1) of the Judicial Service Commission Act, 1994 (Act No.9 of 1994), to regulate procedures before Judicial Conduct Tribunals.

Judicial Conduct Tribunals are meant to form part of the ongoing development of the system of holding judges accountable, not just through their judgments being appealed, but through their conduct being held up to scrutiny by their peers.

What is Judge Hlophe’s Tribunal about?

“The alleged incident, which has hung like a dark cloud over the judiciary for almost a decade, relates to a complaint lodged by the full Constitutional Court Bench, which alleged Hlophe approached Jafta and Nkabinde in their chambers and sought to improperly influence them in a matter before the court involving Zuma, then an ordinary citizen.” – City Press, 2018

In 2008 there was case before the Constitutional Court involving Jacob Zuma, who at that time had not yet become President of South Africa. This was a corruption case concerning Zuma and the arms company Thint, and their role in the multi-billion Rand arms deal.

It is alleged that Judge President Hlophe approached Constitutional Court judges Bess Nkabinde and Chris Jafta and attempted to influence their decision in favour of Jacob Zuma in the case.

The complaint regarding this was made to the Judicial Service Commission on behalf of all the Constitutional Court Judges. (Read a copy of the full statement issued by Chief Justice Pius Langa.)

Why has it taken so long?

Marianne Thamm argues in a Mail and Guardian article;

“Hlophe has employed Jacob Zuma’s Stalingrad strategy when it comes to facing the JSC inquiry into alleged misconduct. It is a case that had dragged on for almost a decade.”

The process has been dogged by a series of court cases over the past ten years. As the JSC set up process to try and deal with the complaint in a formal manner the constitutionality of these processes where challenged by various complainants on both sides of the issue.

Following the initial lodging of a complaint against Hlophe in 2008, a sub-committee of the Judicial Service Commission (JSC), conducted a preliminary investigation into the complaint.

After some preliminary postponements the JSC, by majority decision, refused a further postponement. Hlophe’s counsel asked to be excused on the basis that they could serve no useful purpose in the absence of their client and without instruction. The matter then proceeded in the absence of Judge Hlophe and his legal representatives.

An urgent application by Hlophe to the South Gauteng High Court, Johannesburg, for an order declaring the entire proceedings of the JSC unlawful and therefore void ab initio was partly successful in that the court set aside the proceedings of 7 and 8 April 2009 and ordered that they were to commence de novo on a date suitable to the parties. The court could find no basis for a finding that the proceedings on 5 July 2008 were unlawful.

After hearing the matter, the sub-committee’s report was sent to the JSC, who dismissed the complaints by a majority vote.

This view was challenged in court by the NGO Freedom Under Law. They were successful in their appeal. The SCA and the Constitutional Court dismissed Judge President Hlophe’s appeal.

Constitutional Court judges Jafta and Nkabinde challenged the JSC’s decision to hold a preliminary enquiry and set up the tribunal, as well as aspects of the procedures used for the misconduct hearing, saying it was important to get it right, although they denied wanting to stop the hearing altogether.

As per the SCA judgment, the challenge was 1) to JSC’s decision to hold a preliminary enquiry and constitute the tribunal, and 2) a challenge to the constitutionality of the provision of the JSC Act that provided for the involvement of a member of the NPA in collecting and leading evidence. (Read the full SCA judgment.)

Jafta and Nkabinde’s legal challenge went all the way to the Constitutional Court where it was again dismissed.

Just when it seemed that the appeal process had been exhausted and that there was no further legal recourse which could be employed to cause a delay, the JSC had to attend to the matter of Judge Nkola Motata’s pending tribunal first before proceeding with the Judge Hlophe matter, because Judge Motata had also challenged the constitutionality of the disciplinary process. After Judge Motata’s legal challenge was unsuccessful, his Judicial Conduct Tribunal was held in January 2018.

Can the public attend the Tribunal?

[VENUE UPDATE] The Tribunal will be held at the Park Inn By Radisson Sandton, 118 Katherine St, Sandown, Johannesburg, 2196.

Tribunals are generally closed to the public, although the Tribunal President may determine that all or part of the hearing can take place in public. The Judicial Conduct Tribunal for Judge Motata earlier this year was open to the media.

If you would like to attend the Tribunal it is advisable to contact Mr Sello Chiloane, the Secretariat of the JSC on (010) 493 2687 or (010) 493 2633 or email; Chiloane@concourt.org.za

We are requesting access to attend, record and live stream the Tribunal.

Could this Tribunal lead to impeachment?

According to Section 177 of the Constitution;

(1) A judge may be removed from office only if—

  • (a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
  • (b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.

(2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed.

(3) The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1).

If the Judicial Conduct Tribunal finds that sec 177(1)(a) of the Constitution should be invoked, then this could result in Judge President Hlophe being impeached. The findings of the Tribunal will go back to the JSC, who must decide on the next steps to have the judge impeached. In order for a judge to be impeached The National Assembly must vote for impeachment by a two thirds majority.

 

Further Reading:

Read our previous articles:

Using Stalingrad tactics to delay justice.

How does the JSC deal with complaints against Judges.

Judge Hlophe Tribunal.

Judges Jafta and Nkabinde call for a rescission in Hlophe decision.

Judge challenges constitutionality of JSC Act.

Press Articles:

[8 August 2018] Daily Maverick: The Justice John Hlophe Inquiry Papers: Going nowhere fast

[3 July 2018] City Press: Outrage over Hlophe’s ‘delaying tactics’ as tribunal at standstill

[3 July 2018] IOL: Hlophe case postponed yet again

[2 July 2018] Mail and Guardian: Hlope tribunal: Yet another delay

[2 July 2018] News 24: Judicial Conduct Tribunal postponed after judge recuses himself 

[2 July 2018] IOL: ‘Disgust’ after another delay in Judge Hlophe’s 10-year tribunal saga

[2 July 2018] Times Live: Judge John Hlophe set to face tribunal over undue influence

[29 June 2018] Mail and Guardian: Hlophe complaint faces fresh hurdle

[15 April 2018] City Press: John Hlophe faces risk of impeachment.

[8 October 2017] City Press: Judge Hlophe skirts conflict.

[13 June 2017] Daily Maverick: Analysis: Time for Judge Hlophe to face the music.

[11 June 2017] IOL: Judge Hlophe found to have ‘misdirected himself’ in personal lawyer’s case.

[27 August 2016] Mail and Guardian: Eight years and 10 judges later: Concourt urges resolution to Judge Hlophe complaint.

[26 August 2016] The Citizen: Hlophe gets his day in court.

[2 December 2015] Mail and Guardian: Opinion: Justice delayed is justice denied.

[3 October 2013] The Citizen: Hlophe tribunal to proceed.

[29 September 2013] ENCA: Loved and hated: Who is John Hlophe?

[5 June 2008] News 24 Archives: Should Hlophe step down?

[30 May 2008] IOL: Did Hlophe try to influence Zuma decision?

 

Videos:

[2 July 2018] SABC News: Judge Hlophe’s hearing into his conduct postponed:

[2 July 2018] SABC News: Postponement of Judge Hlophe’s hearing: FC Fourie:

*Please note that JSC Commissioner’s correct name is CP Fourie

[2 July 2018] ENCA: Judge Hlope accused of undue influence involving Zuma case:

[8 June 2016] ENCA: Judge John Hlophe’s misconduct tribunal gets even messier:

[8 October 2013] SABC News: Griffiths and Xulu unpacks Hlophe’s tribunal:

[29 September 2013] ENCA: Jafta, Nkabinde less than eager to return to Hlophe hot seat:

[17 April 2012] SABC News: Litigation commission to be set up for Hlophe matter:

Judgments:

High court decision granting Judge President Hlophe’s application to declare the 2008 proceedings void: Hlophe v Judicial Service Commission and Others (19006/09) [2009] ZAGPJHC 19; [2009] 4 All SA 67 (GSJ) (1 June 2009)

Supreme Court of Appeal judgment overturning the JSC’s decision to dismiss the complaint: Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others (2011 (3) SA 549 (SCA); [2011] 3 All SA 513 (SCA)) [2011] ZASCA 59; 52/2011 (31 March 2011)

Constitutional Court judgment refusing leave to appeal: Hlophe v Premier of the Western Cape Province, Hlophe v Freedom Under Law and Other (CCT 41/11, CCT 46/11) [2012] ZACC 4; 2012 (6) SA 13 (CC); 2012 (6) BCLR 567 (CC) (30 March 2012)

The High Court judgment in Jafta and Nkabinde’s case against the JSC: Nkabinde and Another v Judicial Service Commission President of the Judicial Conduct Tribunal and Others (13/39093) [2014] ZAGPJHC 217; 2015 (1) SA 279 (GJ); [2014] 4 All SA 637 (GJ); 2014 (12) BCLR 1477 (GJ) (26 September 2014)

The Supreme Court of Appeal judgment in Jafta and Nkabinde’s case against the JSC: Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12; [2016] 2 All SA 415 (SCA); 2016 (4) SA 1 (SCA)  (10 March 2016)

Constitutional Court judgment refusing Jafta and Nkabinde’s application to rescind the court’s earlier decision denying their appeal: Nkabinde and Another v Judicial Service Commission and Others (CCT122/16) [2016] ZACC 25; 2016 (11) BCLR 1429 (CC); 2017 (3) SA 119 (CC) (24 August 2016)

Further resources:

[5 June 2008] IOL: Full statement on Hlophe by Concourt judges.

EWN: John Hlophe.

Mail and Guardian: John Hlophe.

Wikipedia: John Hlophe.

Rules made in terms of Section 25(1) of the Judicial Service Commission Act, 1994 (Act No.9 of 1994), to regulate procedures before Judicial Conduct Tribunals.

Judicial Complaints Procedure.

Legal Instruments of the JSC.