The Burden of Proof: Our Judges must Come Clean

helenzille2011bThere has been much media commentary recently about the ongoing saga arising out of allegations that Western Cape Judge President John Hlophe tried to defeat the ends of justice in 2008 by attempting to influence two Constitutional Court judges to decide a case in favour of President Jacob Zuma.

This unprecedented allegation was made by the full Constitutional Court bench in 2008, following a complaint received from the two Judges that Hlophe allegedly sought to influence: Judges Bess Nkabinde and Chris Jafta.

The matter has dragged on for five years, because Judge Hlophe and the Judicial Service Commission have used every legal mechanism available to avoid the matter being legally adjudicated.

Last week it looked as if the matter would come to a head when the JSC Special Tribunal convened to hear the case.

Instead of the anticipated progress, there was an extraordinary development, which could result in the case being dragged out for many more years to come.

The key witnesses, Judges Jafta and Nkabinde, refused to submit a formal complaint or appear before the Tribunal (on the basis that they had not submitted a formal complaint!). Despite this, the tribunal chairman, retired Judge Jaap Labuschagne, ruled that John Hlophe had a case to answer.  This immediately triggered an appeal from lawyers representing Judges Jafta and Nkabinde.

These staggering developments have left the bench deeply divided and the crucial questions unanswered.

The situation has reportedly been described by UCT constitutional law professor, Pierre de Vos, as “a mess”.

It is, with respect, far more than that. In my view it constitutes the gravest crisis in the 20 years of our democracy.

I say this because, until it is cleared up, none of the judges involved can regain credibility and public trust. This includes a Judge President, and many of the Judges of the Constitutional Court, as well as some retired Judges.  They have either offered incompatible versions of events or are refusing to say what happened. We know someone is lying but we cannot get to the truth.  This is untenable, to say the least.

The central pillar of any constitutional democracy is the integrity, credibility and independence of its Judiciary. The apex of our Judicial System is our Constitutional Court, the final arbiter of our founding compact, widely regarded as one of the most progressive constitutions in the world.  When judges achieve “Concourt” status, their careers must have shown them to be above reproach.

The Hlophe case is the biggest test yet of the credibility of our judicial system.  It is not possible for Judges to adjudicate cases with authority and public respect if there is a possibility that they may have lied in a case that could result in the impeachment of a colleague. It is equally untenable that a judge president may have committed an impeachable offence, which his judicial colleagues agree to cover up.  And the question is:  Why would they want to hide the truth?  Is it because, as some have suggested, racial solidarity has trumped the Constitution and the Judges’ oath of office?  Or were they subjected to political pressure? If this speculation is not convincingly disproved, people will be justified in concluding that the outcome of a trial could hinge on the race or political affiliation of a complainant or defendant in a case.  It will be extremely difficult for the judiciary to regain credibility –  and the Judges involved never will.

Furthermore, in an extraordinary development this week, veiled suggestions emerged in the media that the charges against Judge Hlophe may have arisen out of a personal vendetta against him by the Deputy Chief Justice, Dikgang Moseneke. Within days, there were further reports that Judge Moseneke had presided over a case involving his brother and business partner, Tiego Moseneke. The timing of this report could not have been coincidental.

With all the accusations and counter accusations, we need to know: Where does the truth lie?

This kind of case cannot be settled by compromise, nor made to disappear through legal technicalities.

We have to get to the facts. And until we do, a dark cloud will hang over all the Judges involved. Indeed this is a far more serious crisis for the future of our democracy than Guptagate or the Nkandla millions.

Yet it has stirred far less outrage.

It all started in March 2008, when the full bench of the Constitutional Court released an explosive statement alleging that Judge Hlophe had approached Judges Jafta and Nkabinde while they were considering the corruption case involving ANC president, Jacob Zuma in the multi-billion rand arms deal.

The Constitutional Court referred the matter to the Judicial Services Commission for disciplinary procedures, claiming that Hlophe had made an “improper attempt to influence the court’s pending decision”.

Facing possible impeachment if found guilty, Hlophe fought back, accusing the constitutional court judges of “gross misconduct” for sending the complaint to the media before he had time to respond to it.

In April 2009, Judge Hlophe managed to avoid the JSC hearing by providing a “sick note”.

In August 2009 – a few months after Mr Zuma was elected president – the JSC’s disciplinary committee released a statement saying that it was not going to continue with the investigation into the complaint against Hlophe because the complainants and defendants had divergent accounts of the facts of the matter, and there was no prima facie evidence.

This seemed bizarre as complainants and defendants in legal proceedings usually have opposing accounts of events. I strongly suspected that politics had influenced the JSC’s decision. My concerns were reinforced by the fact that the JSC’s disciplinary committee had not been improperly constituted, and that it had not followed the required process.

I therefore successfully challenged the JSC’s decision in the Western Cape High Court on April 19, 2010.

Freedom under Law concurrently (and also successfully) took the JSC’s decision on review on the basis that it was “irrational”.

Judge Hlophe appealed the High Court’s decision. But, on March 31, 2011, the Supreme Court of Appeal upheld the High Court’s decision and set aside the JSC’s decision to drop the matter.

Finally, on March 31, 2012, four years after their initial complaint, the Constitutional Court decided unanimously that it would not hear Hlophe’s appeal. They obviously could not be arbiters in a case in which Judges of their own court were involved.

After this, the Judicial Service Commission had no option but to set up the required tribunal; and Judge Hlophe had no option but to defend the case, hiring well known British QC, Courtenay Griffiths, to do so. And then the bombshell came: Judges Nkabinde and Jafta’s refusal to testify, and their appeal against the ruling of the JSC Tribunal that there is a case that Judge Hlophe must answer.

Five years have elapsed and we are no closer to finding out whether Judge Hlophe lied, or whether Judges Jafta and Nkabinde lied, or whether the full 2008 bench of the Constitutional Court lied.

It is the deepest possible irony that most of the Judges involved will continue to hear cases in which complainants, defendants and witnesses must swear to tell the “truth, the whole truth and nothing but the truth” (and face perjury charges if they do not).

It is equally ironic that the Judicial Service Commission (that tried so hard to avoid having to establish the truth in this matter), will continue to nominate judges who must defend the integrity of our Constitution and the rule of law.

This saga reveals how fragile the institutions of democracy are, and how much they depend on the integrity and independence of their office bearers to survive. These qualities have been called into question. And our democracy faces a severe crisis as a result.

Helen Zille

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