A pickle called Hlophe

2011-12-03 15:25

The Judge John Hlophe legal fallout has presented the Constitutional Court with its thorniest predicament to date.

Those who drafted South Africa’s Constitution could hardly have foreseen a trickier case than this.

The court will have to decide next year whether it can hear a case involving a complaint by seven of its own judges against the Western Cape judge president.

This comes after he allegedly lobbied two of them in favour of President Jacob Zuma, who was then facing corruption charges.

In 2008, Constitutional Court judges lodged a complaint with the Judicial Service Commission (JSC) regarding Hlophe, which subsequently found no wrongdoing by Hlophe or the judges in terms of a counter-complaint Hlophe laid.

Western Cape Premier Helen Zille and rights group Freedom Under Law balked at this and successfully challenged the JSC ruling in the Supreme Court of Appeal.

Hlophe has subsequently applied for leave to appeal to the Constitutional Court, which is where the matter
becomes tricky.

At least seven of the 11 sitting Constitutional Court judges are directly involved in Hlophe’s complaint, which requires them to recuse or excuse themselves to avoid possible bias.

But the Constitution says at least eight judges are necessary for the court to hear a case.

On Wednesday, lawyers for Hlophe argued that the Constitution accounts for the predicament because it provides that the president can appoint acting judges to the court if there is a “vacancy” or if a judge is “absent”.

Acting for Hlophe, Advocate Thabani Masuku argued that a recusal by the judges constituted such an “absence”, and that the president could appoint acting judges to make up the eight judges required.

He said that if the Constitutional Court were to be rendered dysfunctional by judges’ recusal, it would amount to a “failure of the justice system altogether”.

But Zille’s advocate, Sean Rosenberg SC, argued that there was “little doubt” that appointing a large number of acting judges undermined the independence of the judiciary, especially in a case where the president himself was “indirectly implicated”.

Rosenberg argued that an “absence” simply refers to “unavailability due to long leave, illness or some other temporary impediment”, and not to recusal.

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