Defence argues the judge’s alleged meddling was missing ‘the element of persuasion’
According to the April 2021 report of the Judicial Conduct Tribunal, in both cases Hlophe had, uninvited, raised the Zuma cases and said the Supreme Court of Appeal’s judgment — which is now being appealed — was wrong. He also said that there was no case against Zuma and that the former president was being persecuted just as he, Hlophe, had been.
The case was heard by a full court of deputy judge president Aubrey Ledwaba, deputy judge president Roland Sutherland and judge Margie Victor. Masuku said there were no written rules about what judges could and could not say to each other when talking privately. Instead, judges themselves regulated these conversations.
Michael Donen SC, for friend of the court the Black Lawyers Association, said the only rule against which Hlophe’s conduct could be tested was section 165 of the constitution, which says no one may “interfere with the functioning of the courts”. "To his friend [Jafta] he says ‘you are our last hope’. To the stranger [Nkabinde] he has arranged to meet to discuss notionally a point of law, he talks about the members of the Constitutional Court … ‘needing to understand our history’, which is a highly loaded phrase about which we can extrapolate if needs be, but I think all South Africans understand what that means.
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