JSC Hlophe proceedings invalid

2010-04-19 16:03

Cape Town - The Western Cape High Court on Monday found last year's proceedings of the Judicial Service Commission (JSC), when it dismissed a complaint of gross misconduct against Western Cape Judge President John Hlophe, were "unconstitutional and invalid".

High Court Judges Jos Jones and Chamin Ebrahim, in finding against the JSC, also ordered it to pay the costs of an application brought by Western Cape Premier Helen Zille, who mounted a legal challenge against the JSC's decision.

Zille had questioned the constitutional validity of the Hlophe decision, saying that she should, as premier, have been invited to be part of the commission when it met to consider the complaint against him.

The premier also argued that the JSC, at the time it sat to hear the matter, was improperly constituted because it did not have the required 15 members in attendance during the proceedings and decision-making process.

Zille added that any ruling of the JSC had to be supported by a majority of its members, which had not been the case in its decision on the Hlophe matter, when only six of the commission's 15 members had voted that the complaint be dismissed.

Precedent

Zille on Monday welcomed the High Court's finding and hailed it as precedent-setting.

"It sets a precedent - every time government does something that cuts corners on the Constitution, they will be called into line," she told journalists at a media conference in Cape Town.

The JSC would now have to redo the process.

"I certainly will be expecting an invite to attend," Zille said, adding that she was looking forward to it.

In their judgment, Jones and Ebrahim found the proceedings of the JSC "and the decision to dismiss the complaint and counter-complaint which were the subject of those proceedings, are declared to be unconstitutional and invalid".

The judgment further states the "respondents are ordered to pay the costs of this application, which shall include the costs of two counsel".

- SAPA