Hlophe's application dismissed

2012-03-30 14:08
Johannesburg - Western Cape Judge President John Hlophe on Friday lost an application for leave to appeal to the Constitutional Court against previous rulings over his conduct.

"Leave to appeal applications ... is refused," said Chief Justice Mogoeng Mogoeng.

Because Hlophe had raised important and arguable constitutional issues there was no costs order.

The underlying right Hlophe had sought to appeal was a procedural one, he said.

"The rejection of that right will result in the continuance of a process only and will not result, without more evidence, in a finding against him on the substance of the complaint.

"What is more, the applicant has had the benefit of an appeal. These considerations mitigate the threat of injustice," he said.

Conflict of interest

During Hlophe's last appearance in November 2011, a slew of complications arose as the court considered a conflict of interest dilemma, arising from a misconduct complaint that judges of the court laid against him.

"This is a complex matter..." said Kgomosoane Mathipa, rounding off a preliminary hearing that comprised oral submissions by 10 lawyers.

Hlophe had approached the Constitutional Court with an application related to the charge brought against him three years ago. As submissions of the conflict of interest were debated, the judges tried to cover every possible way of proceeding, with Mogoeng slashing time off comfort breaks.

Their options included:
- invoke a doctrine of necessity and hear the application for leave to appeal themselves;
- recuse themselves from the case and let President Jacob Zuma appoint a new quorum (eight judges) for the case; or
- dismiss the case and let the Supreme Court of Appeal (SCA) judgment stand and be the last word on the matter, as is done in some other democracies.

The judges did not hear the merits of the actual appeal, nor the application for leave to appeal.

In 2008, the judges surprised the media with a statement that they had laid a complaint against Hlophe with the Judicial Service Commission (JSC), saying he had made an improper attempt to influence a case. It later emerged that the case related to one of Zuma's and arms company Thint's court challenges, in the now abandoned corruption case.

Hlophe's challenge to the complaint set off a trail of legal applications.


The JSC, meanwhile, held a hearing where Constitutional Court Judges Yvonne Nkabinde, Chris Jafta, and Deputy Chief Justice Dikgang Moseneke testified.

The commission found there was insufficient evidence for the complaints and left the matter at that.

However, legal advocacy body Freedom Under Law applied to the North Gauteng High Court to have the JSC re-open its investigation into Hlophe, but the case was dismissed.

Democratic Alliance leader Helen Zille lodged a similar case in the Western Cape High Court. This court found in Zille's favour, and said the JSC's decision was "unconstitutional and invalid" because it had excluded her as premier and was therefore not constituted properly.

The JSC then appealed and lost at the SCA. The JSC bowed out at SCA level, but Hlophe moved on to the Constitutional Court.

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