Response to Concourt complaint questions integrity of Chief Justice and his deputy

Western Cape Judge President John Hlophe has questioned the bona fides of the man widely expected to become the country's top judge if President Thabo Mbeki has his way: current Deputy Chief Justice Dikgang Moseneke.

He has also suggested that the country's top two judges, Chief Justice Pius Langa and Judge Moseneke, may have lied to the public and may have been politically motivated in the Constitutional Court's complaint against him.

In a comprehensive 71-page response to the complaint, Judge Hlophe vehemently denies claims that he met two of the court's judges in March and April this year "on any mandate from anyone for the purpose of persuading them to rule favourably for (ANC President Jacob) Zuma".

He is alleged by Chief Justice Pius Langa, on behalf of the 11-member Constitutional Court, to have lobbied judges Bess Nkabinde and Chris Jafta.

Judge Hlophe's response includes his own version of what happened during his meetings with the two judges in their chambers, as well as a blow-by-blow response to Judge Langa's 21-page complaint to the Judicial Service Commission. The JSC sits again on Saturday to discuss the matter.

For the first time, it is revealed that Judge Hlophe met a third judge, Judge Sandile Ngcobo, on the same day that he met Judge Nkabinde.

Judge Hlophe's response notes that Judge Ngcobo, the most senior of the three and therefore the most influential, did not claim that he (Judge Hlophe) had tried improperly to influence him.

Judge Hlophe also said that neither judges Jafta nor Nkabinde, whom he met separately in chambers for 90 minutes and 45 minutes respectively, had at any stage indicated that any of his remarks were inappropriate or that "I had overstepped a mark of judicial decorum".

"The views I expressed were my views on issues of law and were never conveyed to seek to influence a judge to ignore the evidence and somehow manipulate the decisions in favour of a particular individual."

In an attempt to counter claims that his visits to the court were irregular, Judge Hlophe said he had visited Constitution Hill that day because a court official, Advocate Theo Sefuba, had arranged a lunch for four judges who were organising a conference of Commonwealth judges in Cape Town.

Judge Hlophe said he had been tasked by Judge Langa to chair the organising committee, and this is what he had been referring to when he told Judge Nkabinde he was visiting the court "on a mandate".

He denied claims that he had told Judge Nkabinde that he was politically well-connected and had intelligence links, or that some people would lose their jobs after the next election.

Targeting the man he believes was behind the judges' complaint against him, Judge Hlophe said the role played by Judge Moseneke in "organising the court to formulate a complaint against me requires answers".

He noted that Judge Moseneke had been on long leave and, like himself, had not sat on the matters relating to Zuma and arms deal company Thint, nor had he read the record or heard the evidence.

"How he also felt that he should be part of the complaint that I am attempting to influence the court on the Zuma/ Thint matter is besides me.

"His role in getting all the judges together, meetings and numerous conversations with Justices Nkabinde and Jafta requires an explanation, given that he was on long leave."

Judge Hlophe said that, given Judge Moseneke's widely publicised views expressed at his 60th birthday party about political events following the ANC's Polokwane conference, "it is very concerning that he should feature prominently in the manipulated solidarity in the case involving Zuma/Thint".

Judge Hlophe continued: "It is unfortunate that an impression may now well be created that his active involvement in the judicial show of strength has nothing to do with me having been attempting to influence the outcome in the case.

"What does Deputy Chief Justice Moseneke know about the Zuma/Thint case that he believes that sitting judges could be influenced to find positively for Zuma/Thint?

"Why 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?"

Judge Hlophe accused judges Moseneke and Langa of "extorting" the complaint from two "unwilling" judges and keeping the rest of the court in the dark about their unwillingness to be complainants.

Judge Hlophe also recounted comments allegedly made to him by Judge Moseneke in which he, Moseneke, "expressed frustration about what he perceived as the poor leadership of Chief Justice Langa".

Chief Justice Langa, along with three other judges, retires in October next year.

With acknowledgements to Cape Argus.