Angela Quintal
5 July 2008
Cape Town — It hardly made a blip on the national radar screen.
In a week when shell-shocked and financially squeezed South Africans faced another fuel hike, in which crime stats underplayed the obvious and top spook Manala Manzini's astonishing performance at the Ginwala Inquiry made even "mad Bob" look sane, the latest episode of Mzantsi Law was just part of the madness.
Western Cape Judge President John Hlophe responded to a 21-page complaint from Chief Justice Pius Langa that he improperly influenced two Constitutional Court justices with a 71-page "shock and awe" rebuttal.
Judge Hlophe believes the country's two top judges should be impeached.
The Judicial Service Commission was to meet behind closed doors on Saturday, and was to decide "purely on the papers", whether the justices or Judge Hlophe have made out a prima facie case of gross misconduct triggering an impeachment inquiry.
Given that Judge Hlophe could well become the first judge to face removal from office, he pulled no punches in his written response to the Constitutional Court.
At the time of writing, the court's response was not yet in the public domain.
With the help of some of the country's top advocates and black intelligentsia, Judge Hlophe's strategy over the past five weeks - since the Constitutional Court went public and condemned him - has put former Democratic Alliance leader Tony Leon's "fight-back" campaign to shame.
Judge Hlophe's accusers and critics have been outclassed, aided largely by the Constitutional Court's own mistakes and belief that with stature comes respect.
The Hlophe strategy appears similar to Jacob Zuma's, where the fight to clear one's name is played not only through official channels but in the court of public opinion, where the prissy legal "establishment" is not king.
It is one where both men - should they ultimately choose to question whether they can get a fair trial or hearing - will have more than ample popular support.
It is a war fought in the media, where, just as Sipho Pityana has asked whether charging Zuma is good for business, those like SA Institute of Race Relations president Sipho Seepe can criticise the court for trumping "constitutional principles" to get Judge Hlophe at all costs.
Seepe also condemns President Thabo Mbeki's bestowal of "an award on Langa while the Constitutional Court is considering a case in which Mbeki may have a material interest", thereby feeding into fertile political ground.
With a record of escaping several other complaints thrown at him by his detractors, Judge Hlophe clearly wants to remain the undisputed Houdini of the judicial world, even if there is blood on the floor, the walls and the ceiling.
His primary target is Deputy Chief Justice Dikgang Moseneke, the man once destined to succeed Justice Langa, when the nation still believed in an "invincible" Mbeki. It is Justice Moseneke, who Mbeki persuaded to leave business in 2001 with the promise of becoming the top judge, whom Judge Hlophe believes is the "mastermind" behind the complaint.
Judge Hlophe is not averse to what some regard as "cheap shots" playing to the gallery of Justice Moseneke's detractors or even drive a wedge between the deputy chief justice and the chief justice, as in the Hlophe revelation that Justice Moseneke complained to him about "Justice Langa's weak leadership".
And in what some commentators believe was an obvious ploy to play to Zuma's homophobic beliefs and those of his supporters, he tries to "discredit" Justice Moseneke, by referring to the talk Moseneke gave to religious leaders on same-sex marriages, which the court had controversially ruled as constitutional.
Judge Hlophe does this to support his contention that there was nothing wrong with his "casual conversation" with justices Chris Jafta and Bess Nkabinde in their chambers, even if it touched on matters of law before the court, such as questions of privilege in the Zuma/Thint applications.
Not only should judges talk and debate the law among themselves, but should also be encouraged to talk to other people, as Justice Moseneke did, Judge Hlophe said.
Justice Moseneke, who was on long leave when the Constitutional Court sat to hear the search and seizure application by Zuma in March, riled Zuma's supporters earlier this year with comments he reportedly made at his birthday party.
Judge Hlophe believes that it was Justice Moseneke who organised the court to formulate a "trumped-up" complaint against him, and he is concerned that, given Justice Moseneke's widely publicised views, "it is unfortunate that an impression may now be created that his active involvement in this judicial show of strength has nothing to do with me having been attempting to influence the outcome".
And for extra strength, Judge Hlophe asks: "Why, given the remarks he is alleged to have made at his 60th birthday party post-Polokwane, is he so actively involved in trying to claim I was seeking to influence judges to find for Zuma, even going so far as to subvert the truth in him concealing to his colleagues, in order to show a veneer of judicial solidarity, that the so-called complainant judges had completely disavowed themselves of any intent to complain?"
And while the lawyers on both sides can battle it out over the fact that Justice Langa's complaint on behalf of the court is effectively "hearsay" and the confirmatory statements from five justices apparently legally suspect, Judge Hlophe also has a fall-back plan if all else fails.
His response is peppered with references to the fact that the way the Constitutional Court chose to issue a media statement condemning him as a precursor to its complaint to the JSC, as well as its alleged media leaks, have set the agenda for the way the JSC will deal with its complaint. It has compromised the JSC's ability to give him a fair hearing.
Judge Hlophe could conceivably drag out any JSC inquiry for as long as possible, and should it eventually find against him, he could exercise his option to seek a judicial review based on the fact that he was not afforded a fair hearing.
It could go all the way to the Constitutional Court - and acting justices would have to be appointed to stand in for those on the bench who associated themselves with the complaint against Judge Hlophe.
Coupled with the fact that the JSC will be chaired by Supreme Court of Appeal president Craig Howie, who some of the Friends of JH believe should recuse himself, the saga is unlikely to be disposed of quickly. It could drag on for months, as was the case with previous complaints against Judge Hlophe. The prize, as speculated, is that the judge could still qualify for his R2-million tax-free bonus - a perk for judges with 15 years' active service - which will be due to him in December next year.
Then, if he chooses to, he could quit and opt to concentrate on his winemaking or perhaps even enter politics.
Alternatively, there are those who believe that to stop oneself sinking deeper into a hole, one should stop digging. Given the huge damage to the judiciary, a compromise should be found and the fallout managed before it is too late.
Opposition politicians like United Democratic Movement president Bantu Holomisa appear to fall in this category: "One can simply say we are chasing a red herring here because the Constitutional Court judges have reacted over high-level gossip between three judges. This thing should just be shelved," he told the Sowetan, giving rise to a possible plan C.
Given that the JSC will decide merely whether there is an impeachment inquiry to pursue, it could conceivably decide in the national interest that the country - given the perilous state of its criminal justice system - can't afford this spectacle.
It could then reject both complaints - finding there was not a prima facie case of gross misconduct - and then deal with rebuilding a shattered institution.
But if this is the solution, what next? An amnesty for Zuma?
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