Karima Brown and Franny Rabkin
19 June 2008
Johannesburg — CAPE Judge President John Hlophe told a Constitutional Court judge that he was "our last hope" when he allegedly sought to influence him in cases involving African National Congress president Jacob Zuma.
The damning allegation is detailed in Chief Justice Pius Langa's submission made on behalf of all the Constitutional Court judges to the Judicial Service Commission (JSC).
The full text of the complaint, detailed in documents in Business Day's possession, sets out the Constitutional Court judges' case against Hlophe, whom they say tried to "improperly" influence two fellow judges.
"Sesithembele kinina (y ou are our last hope)", Hlophe is alleged to have said to Acting Judge Chris Jafta, when, uninvited, he visited him in his chambers at the court.
The 27-page document also lays bare the judges' deliberations on how and why they proceeded with the complaint the way they did.
Langa's frank and open account sets out how Hlophe sought to influence the court's decisions in the four cases before it involving Zuma.
Judges Bess Nkabinde and Jafta - who issued a statement last week saying they were not the "complainant" judges - confirmed that everything that Langa said was correct in as much as it applied to them.
According to the document, Hlophe approached Jafta at the end of March and Nkabinde on April 23 this year.
In his encounter with Jafta, Hlophe allegedly told him that "the case against Zuma should be looked at properly" and said in Zulu words to the effect "you are our last hope".
In Hlophe's encounter with Nkabinde, he told her "he had a mandate to act as he was doing," and told her that the "privilege issue" in the Zuma cases "had to be decided properly".
The issue of privilege was argued by Zuma's legal team as one of the grounds on which Zuma would have reasonable prospects of success in the cases before the Constitutional Court. Privilege was relevant to the legality of the search and seizure warrants that were issued to raid the offices of Zuma's attorney, Michael Hulley.
Hlophe was allegedly aware that Nkabinde was drafting a post-hearing note (an in-depth examination of the law) on privilege, and had proposed a "preliminary conclusion" on how the court should look at the privilege question.
What perturbed Nkabinde was how Hlophe knew that she was dealing with the privilege question. Hlophe told Nkabinde that "he was politically well connected" and was "connected to members of national intelligence".
Nkabinde was so concerned that she sought advice from Judge Yvonne Mokgoro.
In the conversation, Hlophe also said there was no real case against Zuma and that he was being victimised, just as Hlophe himself was.
During their conversation, Jafta told Hlophe "in no uncertain terms that the Zuma/Thint cases would be properly decided on facts and on the application of the law to them".
Nkabinde also asked Hlophe how this was any of his "besigheid" (business).
Both Jafta and Nkabinde felt that Hlophe "wished for a certain result" in the Zuma cases, and that his approaches were "improper".
But while concerned about Hlophe's approach, the complaint said that, from the outset, both of the judges had not planned to lodge a formal complaint with the JSC. Jafta's view was that "he had decisively dealt with the matter by rejecting the approach of Hlophe".
After the matter was raised with Langa and Deputy Chief Justice Dikgang Moseneke, at a meeting of most of the judges, they decided the JSC was the appropriate forum to decide the matter.
Langa said the judges of the Constitutional Court were "shocked and distressed by the reports".
Explaining their decision to make their complaint public, Langa said, "The judges of the court are committed to protecting the integrity of the judicial process and will not, even where circumstances will be difficult or hostile, shrink from that commitment."
According to Langa, the appointment of separate counsel for the two was done in agreement with the other judges. The plan was that Jafta and Nkabinde would draft statements as req-uested by the JSC after the initial complaint was received. Drafts of their statements had been agreed but these were not sent. Instead, the two made their own joint statement.
Langa said, "The other judges of the court had no prior knowledge that the two judges intended to lodge a separate statement of this sort."
Hlophe was not available for comment.
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