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The Western Cape Chief Justice John Hlophe’s Judicial Conduct Court hearing will resume on Tuesday, December 15 after a last-minute request from his legal team in the late afternoon.
The Western Cape Chief Justice John Hlophe’s legal team, led by British lawyer Courtenay Griffiths QC, deployed a three-way attempt to torpedo the long-awaited Hlophe Judicial Conduct Court hearing for misconduct.
The first attempt came early on the third day of proceedings on Friday December 11 when Griffiths, without warning, informed the court that Hlophe’s team would oppose defending Gilbert Marcus, who represents the Constitutional Court justices, presenting arguments.
After a 12-year delay, the Hlophe court hearing began on Monday, December 7, and although final arguments were heard on Friday, it will resume on Tuesday, December 15 after a last-minute request by last minute by part of the Hlophe legal team.
This move, Marcus warned the panel, was “a thinly veiled attempt to establish a possible review.” [of the findings] and, “I can only suspect that something new will be presented to us.”
The Hlophe court is chaired by retired Judge Joop Labuschagne, Supreme Court of Appeal (SCA) Justice Tati Makgoba and attorney Nishani Pather.
At the start of the hearing on Friday Griffiths argued that the interests of the late Chief Justice Bernard Ngoepe, the former Deputy Chief Justice Dikgang Moseneke, as well as the other justices of the Constitutional Court, were “irrelevant” to the Hlophe affair, as they had not been called as witnesses. .
“They are not involved in bringing the prosecution, that is not their role. What right do they have to present an oral argument at this stage? Griffiths asked.
Citing former Chief Justice Pius Langa, Marcus responded that Hlophe’s approaches to Constitutional Court justices Chris Jafta and Bess Nkabinde in 2008, allegedly to sway them in favor of Jacob Zuma in a court case, “attack the core. The Constitutional Court itself as an institution. Every judge has a manifest interest and duty to deal with an improper attempt to influence any other judge. “
Marcus said that the SCA, in Freedom Under Law vs. JSC Interim President, had recognized the positions of the judges and that the matter was of fundamental public interest.
Attorney Thandi Norman, representing Jafta and Nkabinde, and Marcus noted that it was “astonishing” and “without merit” that Hlophe’s legal team sought to present this argument at such a late stage of the hearing.
Until then, it had never been questioned that Constitutional Court judges were plaintiffs, both defenders argued, to which Labuschagne quickly dismissed Griffiths’ objection.
The second attempt to find a loophole also happened towards the end of the long day when Hlophe’s team tried to cast doubt on the charge sheet, suggesting that it contained material irregularities, so Hlophe should be clarified.
Both Norman and Marcus lashed out at Griffiths’ team, saying it was “the height of opportunism” to make an argument “on a spurious basis” at the end of the process.
Marcus said it was unworthy “for an argument of this type at this stage to be presented on behalf of a judicial official with the seniority of a presiding judge” and was an attempt to “annul these processes.”
The charge sheet, he reminded everyone present, had been read at the beginning of the proceedings, which was when Hlophe would have had a chance to object.
“You would have thought that was the opportunity for my scholarly friend to say, ‘Wait, that charge sheet is invalid, we are not here to face an invalid charge sheet.’ Nothing of that kind.
“It is a thinly veiled attempt to establish, at 11 a.m., a potential review and it is totally unfounded.”
Previously, Marcus argued that the established facts of the Hlophe affair “point to a finding of serious misconduct.”
Based on Hlophe’s own version of events, a prima facie case could be established, he added.
“The bottom line is the desirability of a judge from a different division discussing the merits of a pending appeal with two higher court judges, not just arguing, but presenting strongly held views,” argued Marcus.
Hlophe’s visits to Jafta and Nkabinde had been premeditated, Marcus said, adding that Hlophe had discussed the merits of the Zuma case on two separate occasions, discussions that he had initiated.
“He made it clear that he thought the SCA was wrong [in the Zuma matter] and in both cases he expressed his opinion on the privilege and said that the Constitutional Court had to resolve the matter ‘duly’ ”.
Such a conversation would amount to a serious misconduct by whatever standards apply, and any of the conversations, taken by themselves, would be “sufficient to establish the complaint. On the whole, the behavior is even more egregious, ”Marcus said.
If the National Prosecutor’s Office had witnessed such conduct, Marcus said, he would be “justifiably indignant.”
Beyond this, Hlophe’s “defamatory and outrageous attacks against each of the judges, without a minimum of evidence” should not be underestimated.
Hlophe’s legal team objected, saying that she did not face charges related to her attacks on the judiciary and that a separate complaint should have been filed in this regard.
Marcus said that Hlophe’s approaches to Jafta and Nkabinde were not innocuous conversations over coffee, while Hlophe’s team argued that the JP had “the right to enter a colleague’s office, he had the right to watch television, read newspapers and scholarly articles to chat with. ” .
After Labuschagne had already adjourned the hearing on Friday, Griffiths released a last-minute request that the team wanted to present more arguments to be “useful” to the panel.
“There will be no new business. That is pretty clear. Do you want to argue your case in response to what has been said today and surely we will not get a new argument? Labuschagne asked.
“We will be as helpful and clear as possible,” Griffiths replied. DM
