Publication: Cape Argus Issued: Date: 2008-08-21 Reporter: Staff Reporter

Hlophe Edited Quotes to Change Meaning, Hearing Told



Cape Argus



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Dishonest editing of quotes, a dispute over "friends", possible criminal prosecution and accusations of plagiarism, the Johannesburg High Court has heard it all in the Hlophe matter.

The Constitutional Court's outraged legal team said Cape Judge President John Hlophe had edited a quote used in his court papers to give it the opposite meaning.

Advocate Gilbert Marcus SC, for the Concourt, called the change "disgraceful *1".

"To the extent that it may have come across as a deliberate dishonesty... it was not," said advocate Dumisa Ntsebeza SC, for Judge Hlophe, saying the omission had been clearly marked with an ellipsis.

The disputed section was a quote from Canadian academic Professor Martin Fielding, in his book A Place Apart, used first in Judge Hlophe's founding affidavit, then in his counsel's heads of argument.

Judge Hlophe quoted Fielding to support his claim that the Concourt had violated international norms by issuing a press statement about its justices' complaint to the Judicial Services Commission (JSC), that Judge Hlophe had improperly tried to influence judges in favour of Jacob Zu-ma and arms company Thint.

Judge Hlophe's objection to the statement is at the heart of this week's application.

The Fielding quote said confidentiality was needed at the start of a judicial disciplinary process. Two sentences were cut from the middle of the quote, one reading: "One cannot prevent a complainant from going public."

Marcus said the significance of this omission was "self-evident".

The court is hearing an application by Judge Hlophe against the Concourt, its 13 justices and the JSC, seeking to declare the Concourt complaint about him to the JSC unlawful.

Five judges are hearing it.

Earlier, the Hlophe team objected to advocate Wim Trengove SC being a "friend of the court". Trengove and advocate Carol Steinberg were brought in on Tuesday by the court to make impartial submissions to help the judges.

Trengove previously acted for the prosecution in the Zuma/Thint cases and Ntsebeza said Judge Hlophe perceived that Trengove could have an interest in the outcome.

Judge Hlophe believed he was already "in deep waters" and was concerned that he might still face criminal prosecution, said Ntsebeza.

Marcus made it "absolutely clear we are neutral" on Trengove, but pointed out that the Zuma/Thint cases were over and the Hlophe team had not claimed Trengove was privy to any information which could influence the matter.

After a recess, the judges said both Trengove and Steinberg should withdraw.

Marcus hinted at possible criminal charges for Judge Hlophe, saying that if proven, his conduct "may fall within the ambit of a crime against the administration of justice, whether it be attempting to defeat or obstruct the administration of justice, or contempt of court".

The Concourt opposes Judge Hlophe's application on grounds that the JSC has a duty to deal with complaints and the Concourt's complaint is lawful.

Marcus submitted that Judge Hlophe had wrongly argued that the Concourt justices had acted "as a court", when the complaint was by the 13 justices and not the court, and the JSC should be allowed to deal with the matter quickly.

With acknowledgements to Cape Argus.

*1       A disgraced judge should be impeached.

A disgraced auditor-general should be impeached.

A disgraced public protector should be impeached.

A disgraced national director of public prosecutions should be impeached.

A disgraced president should be impeached.