Complaint by constitutional court judges against the Cape judge president has provoked calls for him to step down

The man tipped as a future chief justice under a Jacob Zuma government, Cape Judge President John Hlophe, is alleged to have lobbied at least two constitutional court judges for a pro-Zuma ruling and now faces possible impeachment.

The constitutional court's unprecedented complaint that one of the country's most senior black judges tried to improperly influence it over the Scorpions' raids on Zuma and French arms manufacturer Thint has plunged the judiciary into its biggest crisis yet.

With the judiciary jealously guarding its constitutional independence, news that a senior judge, rather than a politician or the government, might be guilty of interference, has shocked the legal community.

The ANC, meanwhile, has distanced its president from any involvement. Jessie Duarte, the party spokeswoman, said that the constitutional statement itself made clear that there was no suggestion that any of the litigants, including Zuma, were aware of, or instigated, Hlophe's alleged actions.

Marinus Wiechers, a retired University of South Africa law professor, said yesterday that the Hlophe complaint was the most serious crisis the judiciary had encountered: "We are all concerned about the independence of the judiciary. There are other threats, but this is a threat from within."

In Zimbabwe the threat was from the outside, with the Zanu-PF government interfering in the judiciary, but this was a "cancer from within", Wiechers said

Hlophe has previously escaped an impeachment inquiry related to other serious complaints against him, including his alleged moonlighting on the bench and his relationship with the Oasis group of companies.

However, Friday's complaint by judges of the the highest court in the land has provoked renewed calls for the judge to step down pending an investigation by the judicial service commission (JSC) and a possible impeachment inquiry for gross misconduct.

The constitution provides that the JSC - the body tasked with dealing with complaints against judges - can ask President Thabo Mbeki to suspend him pending the finalisation of the case.

The Sunday Independent has established that the two judges who were allegedly lobbied are Justice Bess Nkabinde and Judge Chris Jafta, of the supreme court of appeal and who was appointed an acting judge in the constitutional court this year.

Hlophe is accused of actively trying to influence the judges to sway their colleagues to rule in favour of Zuma and Thint in the search-and-seizure cases.

Speculation is rife that he has an eye on a constitutional court appointment. With Chief Justice Pius Langa expected to retire next year, the post of top judge is alleged to be the prize, especially if the new president, and not Mbeki, appoints the successor. Dikgang Moseneke, Langa's deputy, has burnt his bridges with the Zuma camp and it is rumoured that Hlophe could fill the breach.

Hlophe's allies have dismissed this as yet another smear by those who believe that because the judge president is a Zulu-speaker, he must be aligned to Zuma.

The judge himself said yesterday that he would prefer to let the JSC process unfold first, rather than grant an extensive interview. But referring to the anonymity of the accusers in the statement about his alleged attempt to influence, he said: "I'm keen to hear someone say: 'I'm Judge So and So and this is what I have before me'. I would rather not speculate on allegations, because the truth will come out before the JSC."

Hlope said he was convinced the attack was another "anti-Hlophe" campaign: "I'm in Cape Town. How do I influence 11 judges, including the chief justice, in matters they are handling? This is an irritation, but I would be very happy to hear the complaint, although I am of the view that even if this matter is resolved, they will bounce back with more allegations."

Hlophe, who grew up in Stanger in KwaZulu-Natal, did not wish to comment on whether he has links to Zuma.

No constitutional court judge was willing to comment on the complaint. But one of the judges said that having to deal with the complaint made by certain members of the bench about Hlophe, and having to make a decision about bringing a complaint against him, "was one of the most excruciating things that the members of this court have ever been through".

"We had to go through this very carefully. We had to research everything excruciatingly carefully, and it was, as I say, one of the most difficult issues with which we had to deal since this court began. If what is alleged is correct, then Judge Hlophe has plunged a knife into the very heart of everything that we and the justice system stand for.

"The only positive thing I can say right now about matters like this is that, if they ultimately serve to make the judiciary stronger, then it will have been for the best."

A leading advocate at the Cape Town bar said that Hlophe had publicly "boasted" that he might soon be "acting" at the constitutional court. "The only questions now are these two: will action happen quickly and will Judge Hlophe be properly suspended, as he ought to have been some time ago?"

Another advocate said that the only reason he could think of for Hlophe having done such a thing - if he had - was "to polish his marble *1" with "our new and forthcoming rulers".

He also said that one of the very troubling aspects of the matter was that it "seriously queered the pitch as far as Zuma was concerned. How's this man ever supposed to get a fair trial with this kind of stuff going on?"

Dumisa Ntsebeza, the national chairman of Advocates for Transformation and spokesman for the Black Lawyers Association, said that, without knowing the facts, critics should remain calm instead of convicting Hlophe.

"We are aware, however, that judges talk to each other about matters they are dealing with, whether it is in their own divisions or elsewhere, so instead of calling for Hlophe's head let us await the findings of the commission, which is the recognised body set up to deal with the conduct of judges."

Ajay Sooklal, an attorney for Thint, said that no one at the company knew Hlophe or had had any dealings with him, and that Thint wanted to disassociate itself from this matter.

Michael Hulley, Zuma's attorney, conceded that if Hlophe told the media, or said publicly that he had had a meeting with Zuma, the whole matter could turn very ugly.

"But, as far as I know, my client doesn't even know the judge," said Hulley, "and so the less said by me the better. This matter is a matter being dealt with the judges of the constitutional court. It's not for me to comment on. When the ... judges release details, then it might be my business."

Marumo Moerane, a JSC spokesman, yesterday described the situation as "very unusual" and said that he was in the dark about the complaint's particulars.

The JSC itself had yet to see the complaint. He said he understood that the JSC had forwarded the constitutional court statement to Hlophe for written comment. Once this was received, a meeting of the JSC could be called.

With acknowledgements to Angela Quintal, Jeremy Gordin, Edwin Naidu, Jani Meyer and Sunday Independent.