Recap: Hlophe Tribunal December 2020

It has been over 12 years since the incident occurred in which the Western Cape Judge President, John Hlophe was accused of misconduct. 12 years since the Judicial Conduct Tribunal began investigating the allegations, and 12 years till the commencement of the hearings in December 2020.

After several years of delay, there was quite a build up towards the Hlophe Tribunal.
While some say the hearings themselves were ‘anticlimactic’, their implications for the judiciary are huge.

What happened during the December 2020 Hlophe Tribunal?

For three days between 14 and 18 December 2020, the Hlophe Tribunal sat in Kempton Park to hear witness testimony and legal arguments pertaining to whether or not JP Hlophe had attempted to improperly influence Constitutional Court Justices Chris Jafta and Bess Nkabinde in favour of former president Jacob Zuma’s in a then, pending case.

On day one

On the first day, the Tribunal Panel made up of retired Judge Joop Laubaschagne, Supreme Court Justice Tati Makgoka, and attorney Nishani Pather – ruled that all evidence admitted for the 2011 sitting of the Hlophe Tribunal would be admitted at this Tribunal. This meant that all the testimony from nine of the 11 Constitutional Court justices would be accepted as part of the record – significantly reducing the amount of witness testimony that would still need to be heard.

Later that day, the Tribunal heard testimony from Professor Langalibalele Mathenjwa, who is an isiZulu language expert. He was called by JP Hlophe’s legal team to testify on the meaning of the phrase ‘sesithembele kinina’, which Hlophe is alleged to have uttered to Jafta and Nkabinde in his conversations with them about the Zuma case. Professor Mathenjwa testified that the phrase was not intended to persuade the justices either way, and only those who forced Jafta/Nkabinde to lay the complaint would ascribe an interpretation that meant ‘persuade’. “The phrase was only purported for the confidence, faith, reliance and hope that Hlophe had [in the two justices] and not the other way round” Mathenjwa argued.

Advocate Gilbert Marcus SC, [for the nine justices except for Jafta and Nkabinde – not sure what these means,] questioned how Mathenjwa could testify on Hlophe’s psychological intention as he was not a psychological expert. And, how could he testify as to Jafta’s understanding or interpretation of these words, when he had not interviewed Jafta himself. Evidence leader, Advocate Ivy Thenga, accused Mathenjwa of not being objective as an expert, and of taking Hlophe’s side in his testimony. What he described as a ‘mandate’.

On day two

The second day of the Tribunal heard testimony from Justices Chris Jafta and Bess Nkabinde, who were the two justices JP Hlophe is alleged to have tried to improperly influence. Jafta testified that he had a longstanding friendship with Hlophe and saw nothing untoward in his visit. That they had discussed wide-ranging legal issues. Among which, was the Supreme Court of Appeals questionable findings regarding the Zuma case, which Concourt had had to correct.

Under cross-examination by Courtenay Griffiths QC for JP Hlophe, Jafta conceded that he did not believe that Hlophe had intended to persuade him, nor did he see reason to complain. Jafta explained that the media statement issued by Chief Justice Pius Langa on behalf of all justices mischaracterised him as a complainant, when he was not.

Nkabinde testified that she had been warned by Jafta that Hlophe might raise the Zuma case in her upcoming meeting with him. She went on to say that when Hlophe came to her chambers, he started discussing general legal issues, but later referenced the Zuma case as being very important. At which point she snapped and told him to end the conversation.
“No, my sister, I am not trying to influence your judgment” was Hlophe’s response.

At the end of the second day, Hlophe took to the witness stand and testified that he saw nothing wrong with having discussions with Jafta and Nkabinde, as “lawyers talk to each other about the law all the time”. He explained that he had come to the Concourt to meet with the Chief Justice, and took the opportunity to meet with Jafta, a longtime friend. And yes, they had debated legal issues around the Zuma case.
In the meeting with Nkabinde several weeks later, Hlophe testified, he mainly discussed politics – and avoided legal questions.

Under cross-examination by Marcus SC, Hlophe conceded that it would be a breach of judicial ethics if he had discussed a case that he had previously presided over, but that the Zuma case was not such an example. Therefore, it was not a breach of the Judicial Code of Conduct for him to discuss the legal principles in a case that had attracted wide discussion within and without the legal profession. He denied that he had tried to influence Nkabinde or Jafta in these conversations.

On the last day

On the third and final day, the Tribunal heard legal arguments from all the legal teams. Hlophe’s legal team raised an objection to the nine Concourt justices submitting legal argument without testifying. Griffiths QC demanded that the Tribunal panel exclude them. He later argued that the complaint against Hlophe was “manufactured”; and that there was no case for him to answer to, as the evidence presented was insufficient, despite Jafta and Nkabinde amending their statements earlier in the week. Finally, he argued that the unreasonable delays in prosecuting the charges against Hlophe had caused the nature of the case to “mutate over time”.

Marcus SC argued that, on the evidence presented at the Tribunal, there was strong case for a finding of gross misconduct against Hlophe. He said Hlophe’s two visits to the justices was premeditated, and it was improper of him to convey his “strongly-held” views to both them.

Advocate Thandi Norman SC, representing Nkabinde and Jafta, argued that the amendments to the statements were necessary to address errors in the record, and that overall the evidence given by the two justices’ was consistent, credible and reliable. She also took exception to the suggestion by Hlophe’s legal team that Jafta and Nkabinde were reluctant complainants, who were recalcitrant and vacillating.

What happens next in the Hlophe Tribunal proceedings?

The Tribunal will now sit and deliberate over the complaint. We expect their decision in the next few weeks. If they find Hlophe guilty of gross misconduct, they can recommend he be impeached and removed from office. Or, they may order lesser punishment, like the payment of a fine, an apology, or counselling. Then, the JSC will decide whether or not to accept the Tribunal’s recommendation.

The broader implications on the judiciary

Over the last decade, the Hlophe saga has come to represent the ultimate test of the judiciary’s ability to hold both itself and the other arms of the state, accountable to the standards in the constitution. So far, the judiciary, and specifically the Judicial Service Commission, has not passed the test. Rather, they have entrenched the misconception that judges are above the law and unaccountable. The Hlophe Tribunal represents an opportunity for the JSC to redeem itself. Thus, whichever way it goes, how they handle this decision, is of vital importance.
We are holding our breath…