Cape Judge President John Hlophe "crossed the line of legitimacy" when he allegedly approached two Constitutional Court Judges to influence them on a case regarding Jacob Zuma, the JSC heard on Wednesday.

One of the judges he approached, Justice Bess Nkabinde, told the Judicial Services Commission Hlophe was not supposed to approach them to discuss the Zuma case, which they were hearing at the time.

The tribunal, which was sitting until Wednesday afternoon in Johannesburg to hear claims and counter claims between the judges of the Constitutional Court and Hlophe, adjourned to get a record of proceedings to Hlophe and invite him to make submissions.

Hlophe was accused last year by the judges of the Constitutional Court of inappropriately approaching judges Nkabinde and Chris Jafta to influence them on a case concerning ANC president Zuma's alleged involvement in the arms scandal.

Hlophe then accused the Constitutional Court judges of infringing his rights by making the matter public before he could answer to the complaint.

Neither Hlophe nor his legal team were present at Wednesday's hearings as he was still ill and his lawyers said they would not participate unless he was present.

JSC committee chair, Judge Lex Mpati, ruled that the hearing should continue in his absence.

Justice Kate O'Regan was the last witness to testify before the hearing was adjourned.

She said the judges made the "difficult" decision to lay a complaint against Hlophe and then issue a media statement immediately thereafter, as they were concerned that the issue may leak out.

This would have raised questions on the transparency of the Constitutional Court.

"By definition we are a porous court — 22 law clerks, 11 judges. We were fairly confident that as soon as matter was given to the Judicial Service Commission, it would end up in the press," she said.

"We felt that we needed to make a clear statement that the matter would not impair the case," she said.

O'Regan, who was acting Deputy Chief Justice at the time as Chief Justice Pius Langa was abroad and his deputy Dikgang Moseneke was on leave, denied that the claims against Hlophe were politically motivated.

Hlophe has levelled this claim against O'Regan, Langa, Moseneke and Constitutional Court judge Yvonne Mokgoro.

Mokgoro, Langa and Moseneke in their testimonies on Tuesday said the judges of the Constitutional Court were merely complainants in the matter and that it was up to the JSC to hear all sides of the story.

Email accounts hacked?

The tribunal heard claims of hacking of judges' email accounts and secret intelligence reports regarding Zuma's case. Hlophe, in a statement before the commission, denied any wrongdoing, saying he merely had robust, academic conversations with Nkabinde and her colleague, acting judge Chris Jafta.

The JSC heard how Hlophe allegedly first approached Jafta, an old friend, and raised the Zuma case, knowing very well that judgment by the Constitutional Court on the validity of search warrants in Zuma's then fraud and corruption case was still pending.

Hlophe told Jafta, "we pin our hopes on you", in isiZulu. "I am sure that he [Hlophe] said Mr Zuma was persecuted as he [Hlophe] had been and that the SCA [Supreme Court of Appeal] had got it wrong," said Jafta, referring to an SCA ruling in the same matter which went against Zuma.

Jafta testified that he felt uncomfortable entertaining the conversation with Hlophe but that he did not do anything immediately after the conversation as he was unsure how to handle the situation.

It was only after he heard that Nkabinde had also been approached by Hlophe, that he realised that this could amount to an attempt at interfering in the judgment.

Nkabinde testified that Hlophe had contacted her telephonically and asked to see her to discuss the issue of privilege, a key matter under consideration in the Zuma judgment that the Constitutional Court was working on.

About three weeks before the meeting with Hlophe, Nkabinda had written a note on privilege to her colleagues. She said she could not understand how Hlophe knew that she had researched the matter of privilege.

"I wondered whether, possibly our work was under surveillance," said Nkabinde, adding that Mokgoro, had around the same time lost confidential information on her computer.

Nkabinde, who at that time had been warned by Jafta that Hlophe might want to try to discuss the pending Zuma matter, told Hlophe that she was not in a position to discuss the case with him.

Hlophe had also boasted to Nkabinde about obtaining a list of people implicated in the multi-billion dollar government arms deal from the National Intelligence Agency, she said.

"He [Hlophe] went on to explain that, there is no case against Mr [Jacob] Zuma," Nkabinde said.

"He [Hlophe] said there was a list containing names of people who were also implicated in the arms deal, he had obtained the list from the [NIA] and he said something to the effect that some of the people who appeared on the list were going to lose their jobs when Mr [Jacob] Zuma becomes president," said Nkabinde.

Mokgoro told the JSC that she was "shocked" when Nkabinde told her of Hlophe's conversation with her in her chambers.

"I went home. I couldn't think of anything else. I was disturbed. That night I actually couldn't sleep," said Mokgoro.

The next day, she took O'Regan into her confidence, and asked her if she was over-reacting.

O'Regan informed Moseneke of the matter, and shortly after that Nkabinde spoke directly to Langa to brief him.

Sapa

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