Are our judges being spied on?

And the DA is to seek a meeting with Intelligence Minister Ronnie Kasrils, who yesterday denied any knowledge that judges were being spied on (see report below). 'If these allegations are true, their implications for our democracy are profoundly serious,' the party's parliamentary Chief Whip Ian Davidson said. 'Not only would they constitute further proof of the politicisation of key state institutions, they would also illustrate that the checks and balances that are the hallmark of a well-functioning democracy have been seriously eroded.' A report in The Citizen points out that suggestions of NIA spying are contained in a complaint by all 11 judges of the Constitutional Court to the Judicial Service Commission (JSC), which claims Hlophe tried to influence the court's decision on cases involving ANC president Jacob Zuma. According to the complaint, Hlophe told Constitutional Court judge Bess Nkabinde at a meeting in her office that privilege issues in the cases had to be decided properly. Nkabinde, who had been writing a post-hearing note on the aspect of privilege, had wondered how Hlophe knew what she was working on. 'Hlophe JP told Nkabinde that he had connections with the national intelligence,' the complaint said. Davidson said he would write to Kasrils asking for an urgent meeting on this alleged statement. Full report in The Citizen

The Ministry of Intelligence says its agents don't spy on judges, although a denial by Kasrils was far from convincing, notes E-Brief News. He is quoted in a Business Day report as saying: 'The intelligence services have no mandate whatsoever to investigate the judiciary and if anybody is being used for that purpose this would be totally unlawful and in no way sanctioned from the executive level.' In a report in The Times, Pierre de Vos, professor of constitutional law at the University of Western Cape, described the statements Hlophe allegedly made to Nkabinde as 'shocking, if they are true'. He said: 'Judges should be above politics, even if they know people,' adding that Hlophe might have been bluffing about his intelligence connections. Full report in The Times

The ANC has distanced itself from an alleged claim by Hlophe that he was acting on a 'mandate' in approaching Constitutional Court judges - supposedly in support of Zuma. This follows allegations in the complaint signed by Chief Justice Pius Langa that Hlophe had tried to ensure the case against the ANC president collapsed. It is alleged that - in doing so - Hlophe intimated that 'he had a mandate'; was connected to intelligence structures; and that some people were going to lose their positions after next year's general elections, according to a Cape Argus report. And Business Day quotes ANC Secretary-General Gwede Mantashe yesterday as dismissing any notion that Hlophe could have received a 'mandate' from the party, saying Hlophe was not a member of any decision-making structure of the ruling party. Mantashe said: 'The only thing I know is that Judge Hlophe is not a member of any of the structures of the ANC that provide mandates.' Full Business Day report Full Cape Argus report (subscription needed)

An improper approach that threatened the integrity of the adjudication process and the independence of the Constitutional Court formed the basis for the court's complaint. And in answer to Hlophe's charge that the Constitutional Court acted in a procedurally unfair manner by issuing the media statement, violating his constitutional rights, Langa made the point that 'with a view to the constitutional values of openness and accountability, it was considered that the independence of the Constitutional Court and its deliberative processes would be best protected by a public disclosure of what occurred'. He added, according to his formal response on the matter,'it was felt that it was particularly important to re-assure the public that the judges of the court are committed to protecting the integrity of the judicial process and will not, even when circumstances may be difficult or hostile, shrink from their commitment'. Full response by Chief Justice Pius Lange (PDF file) Constitutional Court complaint against Judge President John Hlophe

The JSC has expressed 'great alarm' at the leaking of the documents. Advocate Marumo Moerane SC told Beeld it was 'shocking' that someone in the JSC had abused his or her position to leak the document. Acting Chair of the JSC, Justice Craig Howie, said the document would not be released officially. The JSC will meet on 5 July to decide whether the proceedings will be held in public. Emeritus Professor Marinus Wiechers said the content of the report means that the controversy is not a pure legal issue anymore. 'If the allegations are true, Hlophe clearly involved the government, politicians and the National Intelligence Agency and identified himself openly as a supporter of Zuma. This means that the matter is now of national and international concern,' he said. Full Beeld report

Whatever the outcome of the Constitutional Court's hearing on the Zuma matter, his corruption trial will proceed, according to the NPA. Spokesperson Tlali Tlali stressed that the 'decision to institute criminal proceedings against Zuma was not dependent on the outcomes of the pending adjudication by the Constitutional Court' or Zuma's current battle with the state in the Supreme Court in Mauritius. According to a Cape Times report, the Constitutional Court has stressed 'there is no suggestion that any of the litigants in the (Zuma case) was aware of or instigated' Hlophe's pro-Zuma lobbying. It has yet to indicate when it will deliver its judgments on the state's legal disputes with Zuma, which were heard at the end of March. Full Cape Times report (subscription needed) QUOTE OF THE WEEK 'The ANC does not need to attack the judiciary because it has become a laughing stock.' - ANC Secretary-General Gwede Mantashe in Business Day