The long-running saga of whether Western Cape Judge President John Hlophe sought to improperly influence the justices of the Constitutional Court in a 2008 matter involving former president Jacob Zuma will finally be clarified when the tribunal set up to hear evidence sits for two weeks at the beginning of July – almost five years after it was to begin its work.
The Judicial Service Commission (JSC) last week confirmed that after a series of court challenges, the tribunal will sit between July 2 and 13.
Hlophe, if found guilty, is at risk of being the first judge in the democratic South Africa to be impeached.
However, Hlophe’s lawyer, Barnabas Xulu, expressed concern that the case was being “politicised” by the JSC and the state attorney’s office because the justice department had not paid some of the money, including “historical fees” owed to his firm.
Xulu said he had written three times this year to the state attorney, requesting clarification and payment.
In the first of these letters, dated February, Xulu states that if the payments are not resolved his firm “will not be in a position to prepare for the hearing and this will no doubt result in our client being placed in an untenable position due to no fault of his own”.
The justice department’s acting chief litigation officer, Rodney Isaacs, said “progress payments” for the upcoming tribunal were made, but the state attorney’s office was “not happy” with the costing of some line items billed by Xulu’s firm, some dating back to 2013, and that these were being contested.
Isaacs denied any political agenda behind the querying of invoices, saying: “We have no reason to politicise this matter.”
JSC spokesperson Carel CP Fourie asked why the commission would want to politicise Hlophe’s hearing since its only involvement “was to ask the chief justice to constitute a tribunal. Further than that, the JSC is not involved in the tribunal.”
The tribunal was set up in 2013 on the recommendation of the Judicial Conduct Committee – a subcommittee of the JSC – after it found that Hlophe was, prima facie, guilty of impeachable gross misconduct.
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.
Hlophe, aggrieved that the Constitutional Court justices had released their complaint to the media, lodged a countercomplaint alleging they had infringed on his rights.
The matter has endured a circuitous and often arduous route over the past decade with various JSC decisions made and processes set up – many of which were challenged in the courts.
Nkabinde and Jafta argued several technical points about the legality of the tribunal, including that it trespassed on the separation of powers doctrine because a member of the prosecuting authority was to lead evidence.
The tribunal, chaired by retired Judge Joop Labuschagne, rejected their arguments, as did a three-member panel of the high court and the Supreme Court of Appeal.
Nkabinde and Jafta then approached their own court, which refused to hear their appeal because its judges were conflicted.
The duo went as far as to ask the Constitutional Court to reverse its own decision – it refused. That journey alone took three years.
During that time, Hlophe mainly stayed away from the JSC, where he would have sat in on interviews for the Western Cape Bench.
His former deputy, Jeanette Traverso, filled in for him.
During last year’s October interviews Hlophe, as the most senior judge president in the country, returned as the representative of the heads of court on the commission, causing consternation among legal analysts.
For the past week’s interviews he was replaced by KwaZulu-Natal Judge President Achmat Jappie, after not-for-profit organisation Freedom Under Law (FUL) wrote to the judges president questioning Hlophe’s suitability to represent them on the JSC until the tribunal made a finding.
Jappie confirmed that the decision to replace Hlophe was made at the meeting of judges president, held before the JSC sat last week.
FUL executive director Nicole Fritz welcomed the setting of dates for the tribunal, saying an expeditious conclusion would benefit all parties concerned.