CAPE JUDGE PRESIDENT HLOPHE BEFORE THE JUDICIAL SERVICES

UNCLAS CAPE TOWN 000086


E.O. 12958: N/A
TAGS: PGOV KDEM SF

SUBJECT: CAPE JUDGE PRESIDENT HLOPHE BEFORE THE JUDICIAL SERVICES
COMMISSION


1. (U) Cape Judge President John Hlophe, regarded by some as a
future chief justice under a Zuma presidency, is being probed by the
Judicial Services Commission (JSC). The commission hearings center
on a complaint against Judge Hlophe, brought by 13 Constitutional
court judges who claimed he tried to influence them in legal
proceedings in favor of ANC president Jacob Zuma. Hlophe instituted
a counter-complaint alleging his rights had been violated by the
Constitutional court judges when they made their complaint public.


2. (U) The court proceedings started in the Johannesburg High Court
(JHC) in 2007 when Hlophe challenged the Constitutional court
judges' complaint and its publication. Hlophe alleged that his
rights had been violated by the Constitutional Court and he applied
for an order to have the action by the Constitutional Court against
him declared unlawful. On September 26, 2008, the JHC ruled that
the Constitutional Court had indeed violated Hlophe's rights. The
matter went on appeal and on April 1, 2009, the Supreme Court of
Appeal (SCA) held that the judges of the Constitutional Court had
not violated the right of dignity (and various other rights) of
Hlophe when they went public with the initial complaint. The SCA
also declared that the judges did not act unlawfully by not allowing
Hlophe to make representations prior to lodging the complaint with
the JSC. The SCA pointed out that there was no authority anywhere in
the world that obliges complainant judges not acting as a court but
acting as individuals to invite a judge to be heard before laying a
charge. On the contrary, the SCA stated that allowing Hlophe to make
such representations at this stage could very well have undermined
the ensuing complaint processes of the JSC.


3. (U) On March 27, Hhlope's case reverted to the JSC for a final
decision. On the same day, Hlophe's lawyers wrote a letter to the
Commission accusing it of bias and raising several issues on the
intended procedure to be used by the JSC. The proceedings were
interrupted on April 1 (the day the SCA judgment was read) when
Hlophe's lawyer Vuyani Ngalwana presented a sick note saying Hlophe
had "severe influenza" and could not attend. The hearing was
adjourned while the court decided whether to proceed without him.
In a further development Hlophe fired his advocate and hired new
Counsel. This latest move is seen as merely another attempt at
delaying the case and avoiding impeachment. On April 4, Hlophe
again applied for a ten day postponement in order to allow his new
counsel to acquaint himself with the case. The JSC is, however,
determined to pursue the matter against Hlophe and only granted a
two day postponement. It appears that Hlophe's strategy is one of
delay and postponement and the matter is set to continue on April 8,
2009.