Zille takes on JSC over Hlophe

2010-03-10 16:05

Cape Town - As premier of the Western Cape, Helen Zille should have been party to the Judicial Service Commission's (JSC) deliberations on Judge John Hlophe, the Western Cape High Court was told on Wednesday.

Senior counsel Sean Rosenberg was arguing in an application by Zille to have last year's JSC finding that Hlophe was not guilty of gross misconduct, declared invalid.

She also wants an order that premiers be given a "reasonable opportunity" to take part in JSC proceedings when they relate to the high courts in their provinces.

At issue are the JSC's two meetings, in July and August last year, at which it dismissed a complaint by Constitutional Court judges that Hlophe had tried to improperly influence their pending decision on a case involving President Jacob Zuma.

Hlophe is judge president of the Western Cape, and an aspirant for the Constitutional Court.

Required by Constitution

Rosenberg told judges imported from the Eastern Cape and Free State to hear the case, that the JSC proceedings should be declared a "nullity" because Zille was not invited to be part of them, as the Constitution required.

The proceedings were also invalid because only ten members of the JSC participated, when there should have been at least 15.

In addition, a majority of the maximum 25 members of the JSC had not supported the decision, as required by the Constitution.

Zille said in an affidavit that she was not challenging the merits of the JSC's decisions.

Her challenge was simply that the JSC had not been "properly, lawfully and constitutionally constituted" at the time.

"If I had been informed as to the details of the JSC proceedings, I would have complied with my constitutional obligations and right to attend and participate as a commissioner in those JSC proceedings," she said.

Zille's challenge is separate from one being brought by the organisation Freedom Under Law, headed in South Africa by ex-Constitutional Court judge Johann Kriegler.

- SAPA