Sometimes during legal proceedings there is a single moment that cuts to the heart of the matter. At the judicial conduct tribunal of Western Cape judge president John Hlophe, that moment came on Friday in the form of a proposition by one of the three-person adjudicating panel.
Supreme Court of Appeal (SCA) judge Tati Makgoka asked Hlophe's counsel, Thabani Masuku SC, if he could test “one issue of judicial probity” with him: “At least at puisne [lower court] level, a judge who has heard a matter and has reserved judgment. is in a sacred space,” Makgoka said.
“No person, including the colleagues of that judge, can discuss the facts of that case, or the legal principles involved. or the jurisprudence involved in that case. At appellate level that would apply with equal force.”
The sacred space could only be entered into at the invitation of the judge. “But no other person can, uninvited, encroach into that space,” Makgoka suggested.
Masuku replied: “As a broad legal principle, I think that would be OK.”
Makgoka's statement captured the principle of judicial ethics at the core of the 12-year saga involving Hlophe. In 2008, all the justices of the Constitutional Court laid a complaint with the Judicial Service Commission that Hlophe had improperly sought to influence the outcome of a judgment, then pending before their court, connected to corruption charges against Jacob Zuma and French arms company Thales.
At the time it was widely believed that Zuma's ambition to become president depended on the outcome of the case. As it turned out it was not the highest court that cleared the way for Zuma but the National Prosecuting Authority, which later withdrew the corruption charges. But no-one knew that would happen then.
Counsel for the majority of Constitutional Court justices, Gilbert Marcus SC, reminded the tribunal on Friday what was at stake at the time. He suggested that if the NPA or any of the parties to the Zuma/Thales cases had witnessed what Hlophe was alleged to have done, there would have been “justifiable outrage”. “Indeed, it would have imperilled the very ability of the Constitutional Court to proceed further,” he said.
Earlier in the week, Hlophe had, under cross-examination, stuck to his version that his visits to two justices of the Constitutional Court in March and April of 2008 — Chris Jafta and Bess Nkabinde — were innocent chats with colleagues over coffee. Their discussions of the Zuma/Thales cases had been non-specific discussions of legal theory.
“There is a big difference between talking about principles of law in general and talking about the facts of a case,” said Hlophe. There was no law that said that one may not discuss a case with any judge.
But Marcus argued on Friday that, on Hlophe's own version, he was guilty of gross misconduct. Going through Hlophe's own evidence over the years, he said the judge president had himself admitted that, during both visits, he had brought up the Zuma/Thales cases. These were before the Constitutional Court at the time after Zuma and Thales appealed against an SCA ruling that search warrants used by the Scorpions to seize information were valid.
According to Marcus, Hlophe had said that the SCA had got it wrong, that he had expressed “strong views” on the case or the issue of legal privilege — the issue at the heart of the cases — and said that the matter had to be decided correctly.
“The very purpose by saying [to the justices] the SCA had got it wrong can only mean that his strongly held views. were intended to convey that it was their responsibility to put right what the SCA had got wrong,” Marcus argued.
But Masuku said Hlophe had never admitted that he had expressed a hope for a particular outcome in the Zuma/Thales cases when he visited the judges. Hlophe had said that what he meant was that the Constitutional Court must put an end to the uncertainty created by the SCA, whose decision had been arrived at by a narrow majority. “Judge Hlophe hasn't once changed his version,” said Masuku.
There was no evidence that there had been any discussion of the merits of the Zuma/Thales cases, Masuku said. He argued that Hlophe's conversations with Nkabinde and Jafta had to be looked at in the context of the presumption of judicial impartiality — that no matter what judges read in newspapers or hear from others, they are presumed to act impartially. Judges also had constitutional rights, he said, and Hlophe had a right to freedom of expression.
Marcus said that when the versions of Jafta and Nkabinde were added to Hlophe's, the case against him became “with respect, overwhelming”. He said the two justices corroborated each other's evidence that Hlophe's visit to Nkabinde to discuss the issue of privilege had been premeditated.
Though Hlophe denied this, Nkabinde had said Hlophe told her already on the phone, when he called to make an appointment to see her, that he wanted to talk to her about privilege. When she had lunch with Jafta the next day she wondered aloud what he could mean by this and Jafta cautioned her that perhaps he might be referring to the Zuma/Thales cases as he had discussed them with him also. “The premeditation was clear,” said Marcus.
The chair of the panel, retired judge Joop Labuschagne, said the panel would take some time to consider its decision.
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