Technical objections by Hlophe ‘misplaced’

2013-11-01 15:27

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Western Cape Judge President John Hlophe’s objection that no valid complaint was lodged against him was “misplaced”.

This was revealed today in unanimous reasons handed down by the judicial conduct tribunal appointed to investigate the misconduct complaint against Hlophe.

The reasons for the decisions to dismiss objections raised by both Hlophe and Constitutional Court justices Bess Nkabinde and Chris Jafta to the tribunal were handed down this morning.

The decision will now be challenged by Jafta and Nkabinde in the South Gauteng High Court.

Courtenay Griffiths, who appeared for Hlophe before the tribunal, argued that the amended Judicial Service Commission (JSC) Act requires that a complaint against judges be contained in “an affidavit or affirmed statement”.

This was the primary argument of Hlophe and an alternative argument submitted by justices Jafta and Nkabinde.

The tribunal ruled that the “crisp question” was whether the requirement in question had the effect of invalidating complaints previously submitted, and which were not submitted by way of an affidavit or affirmed statement.

But the tribunal, which is headed by retired judge Joop Labuschagne, ruled that “the validity of the complaint and all the rules were never objected to before.

“It is only now, after more than five years have expired, that these preliminary objections are now argued.”

The tribunal ruled that the “requirement of an affidavit or affirmed statement is in our view merely intended to guard against and as a filter to exclude unmeritorious complaints against justices.

“In such circumstances it is unlikely that a compliant made by the Constitutional Court justices would be invalidated for non-compliance with the section, particularly where there are confirming statements and affidavits filed in judicial proceedings.”

The tribunal ruled that the “common cause facts are that the Constitutional Court justices were very serious when the complaint was lodged.

“They made confirmatory statements and confirmed the contents of the statement by the late Chief Justice (Pius Langa) as true and correct.”

The tribunal therefore found there had been compliance with the provisions of the section in question.

The tribunal has also dismissed an objection advanced by justices Nkabinde and Jafta that the dispensation of rules which applies to Hlophe’s tribunal should be that applicable before the JSC Act was amended.

Selby Mbenenge, who appeared for the justices, pointed out that section five of the unamended Act provided that the applicable rules had to be published in the Government Gazette.

This was never done.

Mbenenge therefore argued that the tribunal was illegitimate.

The tribunal, however, dismissed the argument, saying it went “too far”.

It ruled that the enabling provision in this regard was not the JSC Act, but the provision of the Constitution which allows for judges to be impeached.

Justices Nkabinde and Jafta have already filed court papers to challenge these findings.

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