Jafta may be forced to explain private conversation with Hlophe

From the complaint handed to the Judicial Service Commission (JSC) last week by Chief Justice Pius Langa, outlining allegations of impropriety against Hlophe, it is clear Jafta has refused to disclose to the Chief Justice one part of the conversation, saying it had been 'in confidence'. However, if he is called by the JSC as a witness, legal experts believe he may be compelled to divulge the missing part. Constitutional law expert Advocate Johan Kruger SC said Jafta could not claim legal privilege as a reason for not disclosing details. And a former Unisa law professor, Marinus Wiechers, said: 'It's a common-law principle of natural justice that we all have the right to remain silent. But it could affect the credibility of your evidence.' Full Sunday Times report

Hlophe saw Jafta as the door to the Constitutional Court, says a Mail & Guardian Online report, which notes they have been friends since they both lectured at the former University of Transkei. The report says that when Hlophe received a 'mandate', as he allegedly told Judge Bess Nkabinde, he leant heavily on his former colleague to give him access. He allegedly visited Jafta in his office unannounced at the end of March in a bid to influence him in Zuma's favour in the Zuma/Thint matter. Two weeks earlier, Jafta sat on the Bench when the legal teams for Zuma and Thint presented their reasons for wanting the search and seizure warrants declared unlawful. According to Jafta, Hlophe told him in Zulu that he was 'our last hope' ('Sesithembele kinina') to rid Zuma of this legal obstacle. He appealed to Jafta for help, suggesting he and Zuma were both being persecuted. Jafta told his seniors his impression was that Hlophe 'wished for a particular result in this matter,' but did not specify it. Jafta refused to reveal the other part of the exchange to his seniors, claiming it had 'been told in confidence'. Jafta believed he had dealt with the matter sufficiently by rejecting Hlophe's approach, and saw no need to lay a complaint at the time. He did, however, feel compelled, when he heard Hlophe was due to visit Nkabinde, to warn her Hlophe was lobbying for Zuma. Full Mail & Guardian Online report

Legal organisations believe the JSC should consider a public hearing on the Hlophe matter. According to a report in The Weekender, some members of the legal profession say Hlophe's hearing should be public because of the high office he holds. 'Before you are a judge, you are a citizen,' says an unnamed Johannesburg Bar member. Others believe transparency is essential because the complaint by the Constitutional Court is also an attempt to ensure the public retains respect for the institution. 'The court is committed to transparency generally and the regime today is totally different from the previous one where things used to be kept closed and away from the public,' another Johannesburg lawyer is quoted as saying. Full report in The Weekender

The JSC, which drew criticism for not pursuing the last complaint against Hlophe, has a chance to reassure the public that there are no cover-ups by ensuring the hearing is open, argues leading legal commentator Carmel Rickard in The Weekender. Noting the commission can make its own rules on the issue of transparency, she says it ought to be guided by what is in the public interest. 'There can be no doubt that allegations of improper attempts to interfere with the functioning of the highest court in any matter, let alone one concerning the likely next head of government, is an issue of public interest.' She adds: 'Justice, and public confidence in the Constitutional Court and the JSC, requires that any hearing in the matter should be open.' Full article in The Weekender

However the matter is resolved, it will leave considerable rubble in its wake, says Rickard in a column in The Weekender. She writes' 'The standing of the judiciary, its independence, our assumption of judicial probity, the function of a judge under the rule of law and the role to be played by the bench in a constitutional democracy - none of these can now be taken for granted in quite the same way as before.' Full column in The Weekender