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Hlophe saga painful - Jafta

2009-09-21 12:20

Johannesburg - Supreme Court of Appeal Judge Chris Jafta had to go over the controversy involving his friend Western Cape Judge President John Hlophe yet again when he was interviewed for a post on the Constitutional Court on Monday.

Advocate Marumo Moerane broached the subject by saying it had been the “most serious matter” the Judicial Service Commission (JSC) had ever had to deal with.

“It was marked by bitterness and rather harsh language,” said Moerane in the vast hall in Soweto’s Kliptown, adding that it had adversely affected many people.

The tradition during the interviews has been to declare a past friendship or association, and during the JSC preliminary investigation into Hlophe, the committee heard that the two were old friends dating back to when they were academics.

Complaint against Hlophe


Jafta was acting at the Constitutional Court when it became public that the judges laid a complaint against Hlophe after he made what they considered an inappropriate approach to Jafta and Judge Bess Nkabinde while they were writing a judgment on President Jacob Zuma.

Jafta agreed it had been painful, and had affected his family too, but told the JSC during his interview that he considered the matter closed.

He was asked by commissioner Professor Johann Neethling to explain media reports that appeared to show that he had changed his mind about the original complaint, but Jafta said this was incorrect.

He said after Hlophe’s visit to the Constitutional Court while that judgment was being written “one could make the inference that there was an attempt to influence".

"So there was no stage that I had a different view. I was drawing an inference from those facts, on the totality of the facts.”

Access to justice

Once the Hlophe “question” was over, Jafta turned his attention to how expensive it is to lodge a legal challenge, and spoke passionately about how this denies many people access to justice.

“Something must be done – first to bring down legal costs,” he said, adding that the state should also do something to finance litigation on behalf of poor people.

This would also help to develop customary law.

His interview was followed by that of Johannesburg High Court Judge Mohamed Jajbhay whose cases include ordering the Sunday Times to return former health minister Manto Tshabalala-Msimang’s medical records.

Asked whether he doubted that judgment, he said that once he ruled, he stuck by his decision and after that, no other medical details were published.

However, “as a human being”, he said as a judge working by himself, he would sometimes like to have other judges to discuss a matter with.

RAF cases

He said the high courts in Johannesburg and Pretoria were extremely busy, mostly with Road Accident Fund cases, and some sort of enforced mediation would help unclog the roll and save litigants millions.

“Millions, if not tens of millions are being wasted… on legal fees, medical fees,” said Jajbhay, adding that the Commission for Conciliation, Mediation and Arbitration was already running a successful mediation process.

Asked whether he had considered withdrawing because of reports of a lack of faith in the JSC, he said nobody would dare ask him.