Hlophe Tribunal set to resume
The Judicial Conduct Tribunal for Western Cape Judge President John Mandlakayise Hlophe is scheduled to resume on Monday, 21 October 2019, in Johannesburg. At the last meeting of the Tribunal on 2 July 2018, Judge Musi recused himself, and the Tribunal was postponed indefinitely. Judges Matter was informed of the new date for the Tribunal to resume during the October 2019 Judicial Service Commission (JSC) interviews.
Judge John Hlophe
In 1995, at the age of 36 John Hlophe was appointed as the first black Judge of the Western Cape High Court Division, and the first judge to join the bench directly from academia. In 2000 he was appointed as the Judge President of the Western Cape High Court Division – one of the youngest people to become head of a court.
The history of the complaint
Judge President Hlophe faces charges lodged in 2008 that he had improperly approached Constitutional Court Justices Nkabinde and Jafta to influence that court’s pending judgment in several related cases relating to the former President of the republic Jacob Zuma, and Thint. These cases related to the lawfulness of search and seizures of Zuma’s home in relation to corruption associated with the Arms Deal.
Among others, Justice Nkabinde and then Acting Justice Jafta presided in the cases. It is alleged that towards the end of March 2008, and after argument in the Zuma/Thint cases had been heard, and without invitation, Judge President Hlophe visited the chambers of Justice Nkabinde and Acting Justice Jafta, respectively. It is alleged that during these visits Judge President Hlophe, without invitation, sought to improperly persuade Justice Nkabinde and Acting Justice Jafta to decide the Zuma/Thint cases in a manner favourable to Zuma.
The approach by Judge Hlophe to both Justice Nkabinde and Acting Justice Jafta was then made known to Justice Mokgoro by Justice Nkabinde when the court term commenced in May 2008. Justice Mokgoro advised Justice Nkabinde to report the matter to Chief Justice Langa and Deputy Chief Justice Moseneke, as the matter would affect the integrity of the judiciary and that, if not attended to, it would place it in peril.
Thereafter, Justice Nkabinde informed Chief Justice Langa of what had happened. Chief Justice Langa and Deputy Chief Justice Moseneke indicated that in the light of the seriousness of the matter it was their view that the Constitutional Court judges be informed of Judge President Hlophe’s conduct. The Constitutional Court held a meeting and during this meeting agreed that the JSC would be the appropriate body to determine any dispute of fact that might arise but decided that it was appropriate given the perceived attack on the integrity of the Constitutional Court that all judges should be party to the complaint. On 20 May 2008 the judges of the Constitutional Court unanimously laid a complaint to the JSC against Judge President Hlophe.
It is in respect of the complaint by the Constitutional Court judges that the Judicial Conduct Tribunal (the Hlophe Tribunal) is being held.
The history of the Hlophe Tribunal
The tribunal ought to have began in 2013. However, Justices Nkabinde and Jafta raised challenges against the tribunal’s constitutionality, alleging that there was no valid complaint before the tribunal that could be investigated. The chairman of the tribunal, retired judge Labuschagne, dismissed the objections raised by Justices Nkabinde and Jafta. This resulted in Justices Nkabinde and Jafta approaching the high court to challenge Judge Labuschagne’s ruling. In 2014 the high court dismissed Justices Nkabinde and Jafta’s application. Justices Nkabinde and Jafta then approached the SCA, which court also dismissed their appeal. As a last resort, Justices Nkabinde and Jafta then approached and applied for leave to appeal at the Constitutional Court. In May 2016, the Constitutional Court dismissed Justices Nkabinde and Jafta’s application.
Two years later, 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 Nkabinde and Jafta were present as they had made themselves available to be called as witnesses. Judge President Hlophe was not present.
At the commencement of the tribunal a preliminary issue was raised, relating to Judge Musi. Judge Musi gave a statement wherein he advised that the tribunal had received an urgent affidavit from Judge President Hlophe calling on Judge Musi to recuse himself due to some disparaging remarks Judge Musi had allegedly made about him in 2017. Judge Musi denied the allegations but considering the circumstances of the matter he recused himself from the tribunal. As a result, the tribunal could not continue. Judge Labuschagne postponed the tribunal sine die (which means that the date of the next hearing had as yet to be determined).
Judge Makgoka appointed to the Tribunal
To replace Judge Musi, Judge Makgoka has been appointed by Chief Justice Mogoeng to sit on the tribunal. Judge Makgoka was appointed to the Gauteng High Court in 2009 after having worked as an attorney since 1994. He was appointed to the Supreme Court of Appeal (SCA) in April 2018.
Cause for further delays?
Part of the reason why the Hlophe Tribunal has taken so long to is that there have been a number of legal challenges to various parts of the process.
You can read more details about the various legal challenges here: Hlophe Tribunal
Another challenge that may arise is the issue of fees.
The Department of Justice said in 2013 that it has paid more than R8.7-million in legal fees for the litany of legal battles that have emanated from the complaint of misconduct which Judge Hlohpe faces.
Department spokesman Mthunzi Mhaga said at the time that an additonal amount “R778,787.30 remained in dispute.”
“…The Department is of the view that this amount claimed is excessive and exhorbitant. The Department has requested that this amount be taxed by the relevant Law Society,” he said. Mhaga said then that they would be prepared going forward to pay capped amounts. “These amounts are R25,000 for senior counsel, R16,000/R10,000 for junior counsel. There is no agreement to pay for a particular senior counsel or QC. The Department’s understanding is that it will pay a maximum of R25,000 per day.”
If the matter of the fees has not been settled it may be used as yet another reason for postponement on the 21 October.
[UPDATE: 19 OCTOBER 2019]
On Thursday, 17 October 2019, the pokesperson at the Office of the Chief Justice confirmed to Judges Matter that the Hlophe Tribunal was scheduled to go ahead on Monday, 21 October 2019. Judges Matter was also given permission to attend the Tribunal proceedings. However, we were then informed by the Office of the Chief Justice late on Friday evening (18 October 2019) that the Judicial Conduct Tribunal for Judge Hlophe had been postponed and a new date has not yet been decided.
According to Times Live, in a statement, the Tribunal said:
“Regrettably, the tribunal is unable to commence with hearings due to an unresolved dispute regarding legal fees between the Office of the State Attorney and Judge President Hlophe’s attorney.
“The tribunal president, Judge Labuschagne, is exploring other avenues to ensure that the dispute is resolved to enable the tribunal to convene as soon as it is practically possible and deal with this long outstanding matter.”
Download the press statement: Postponement of the Hearings of the Judicial Conduct Tribunal