Valid Hlophe complaint exists: Lawyer

There is a valid complaint against Cape Judge President John Hlophe, a tribunal heard on Monday.

   

"The complaint [against Hlophe] was made by all the Constitutional Court judges," said Gilbert Marcus, SC, for the court's judges excluding Chris Jafta and Bess Nkabinde. 

   

"The complaint was accompanied by confirmatory statements," he told the tribunal in Johannesburg.

   

Marcus was arguing during a Judicial Service Commission (JSC) tribunal hearing into a complaint of judicial misconduct against Hlophe.

   

Hlophe allegedly tried to influence Jafta and Nkabinde in a legal matter.

   

In 2008, the two judges alleged that Hlophe approached them while they were considering their judgment in a corruption case relating to President Jacob Zuma and arms company Thint involving the multi-billion rand arms deal. The justices regarded discussing the case with them as an attempt to improperly influence the case and a complaint was lodged.

   

Hlophe, affronted that the judges had sent a copy of the complaint to the media before he had time to respond to it, laid a counter-complaint. A lengthy stop-start parallel process of JSC hearings and court challenges ensued.

   

The matter was ultimately heard in the Supreme Court of Appeal with rulings in favour of Western Cape premier Helen Zille and lobby group Freedom Under Law.

   

Last October Chief Justice Mogoeng Mogoeng said he would formally appoint tribunal members.

   

Hlophe faces impeachment if found guilty.

   

Marcus said six Constitutional Court judges, which included then Chief Justice Pius Langa, testified in a 2009 JSC hearing on the matter.

   

"All the justices who testified under oath confirmed that they were complainants," he said.

   

"Chairperson, I give you my assurance that the statements from all the judges are on the same line."

   

Evidence leader Xoliswa Khanyile also told the tribunal that the complaint was lodged by all of the judges and not just Jafta and Nkabinde. It was a collective decision.

   

Earlier, Courtenay Griffiths, for Hlophe, said there was no formal complaint lodged against his client.

   

Jafta and Nkabinde had distanced themselves from the matter.    

 

"Where does this tribunal go from here when the two most important judges [Jafta and Nkabinde] in this matter are saying we not coming because there is no complaint," Griffiths asked.

   

"Both... made it clear they were not planning to pursue a complaint."

   

Khanyile said Jafta and Nkabinde had indicated that they had no interest in the matter but that they would testify if subpoenaed.

   

She said she intended calling them to testify.    

 

Jafta and Nkabinde had separate legal representation to the other judges.

   

Griffiths had argued that there was no affidavit in line with the JSC Act amended in 2010.

   

"A complaint must be lodged in terms of an affidavit.

   

"There is no affidavit or confirmed statement from any of them,"  he said.

   

Affidavits had to be submitted according to the new rules.    

 

However, Marcus argued that this was not a prerequisite because the JSC had an obligation to investigate any complaint made against a judge.

   

-Sapa