Hlophe appeal may cause legal crisis and open old wounds

2011-04-02 17:57

The Supreme Court of Appeal’s (SCA) ruling this week that ­hearings into Western Cape Judge President John Hlophe’s conduct should be reopened may have precipitated a constitutional crisis.

A full bench of the court ruled on Thursday that the Judicial Service Commission (JSC) erred in closing the Hlophe case before subjecting him and Constitutional Court judges Bess ­Nkabinde and Chris Jafta to cross-examination.

Hlophe was charged by the commission with misconduct after Constitutional Court ­judges complained that he allegedly ­attempted to influence ­Nkabinde and Jafta to rule in favour of ­President Jacob Zuma in a matter related to his corruption case.

The case was closed by the ­appeal court after the commission argued that ­neither Hlophe’s version of events, nor that of the Constitutional Court ­judges, could ever be proven to be true or false.

This view was challenged in court by the NGO Freedom Under Law, led by Archbishop Emeritus Desmond Tutu, retired judge Johann Kriegler and academic Mamphela Ramphele.

This week, the appeal court ruled in ­favour of the NGO, slamming the appeal court for using the wrong legal test; for not subjecting Hlophe, Nkabinde and Jafta to cross-examination; and for deciding what was in the best interest of the judiciary and the country.

Legal analyst Kevin Malunga told City Press that Hlophe had already said he would precipitate a constitutional crisis by appealing to the Constitutional Court for a review of the appeal court’s ruling – a move Malunga thought was well within the judge’s rights.

Questioning what would happen if the Constitutional Court had to rule on a matter which its judges are party to, Malunga asked: “What happens when this happens? Do you get acting ­judges to listen to the case?”

Malunga sees the Hlophe ­matter as a proxy war for other unresolved issues in the judiciary relating mainly to race issues and egos in the legal profession.

Though he stopped short of saying that the case should be settled outside of court, Malunga saw little prospect of it ­shedding new light on what was already in the public domain.

Malunga said: “This is an unnecessary ­opening of old wounds that will not prove anything. You can cross-examine all you like, but chances are that it will be a very hard case to prove.

“This thing will only take the racial issues in the judiciary 15 years backwards because it will pit black lawyers against liberals. At the end of it all, all it will do is compromise the entire edifice of the justice system.”

Law professor emeritus ­Marinus Wiechers said the appeal court ruling showed that “no institution is free from judicial ­oversight, the JSC included”.

Wiechers pointed out that nothing prevented Hlophe or the commission from appealing their case in the Constitutional Court. Not only had a number of the judges ­involved retired and been ­replaced by others, but it was also possible to appoint acting ­Constitutional Court judges.

“The Constitutional Court is not incapacitated”, Wiechers said. The commission, he said, was obliged by the judgments to reopen the process against Hlophe. “This is probably what the JSC will do. It would be the honourable thing to do.
Reopen the process and play open cards.”

The commission will discuss the matter at its meeting in Cape Town ­tomorrow, said JSC spokesperson advocate Dumisa Ntsebeza. “Are we going to appeal? I don’t know. That will be informed by the meeting and by what the ­lawyers are saying and whether this is a matter that must still be drawn out in the courts or ­whether it is a matter that we must just meet head-on.”

Hlophe did not react to a ­request for comment, and ­Kriegler said: “We are grateful that our view of the law has been ­vindicated.”

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