ConCourt laments lag in resolving Hlophe matter

2016-08-27 07:58
Constitutional court. (News24)

Constitutional court. (News24)

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Cape Town - The Constitutional Court has lamented how long it is taking to conclude the complaint against Western Cape Judge President John Hlophe and implored the parties to get on with the job.

In dismissing the latest application relating to the matter on Wednesday, the judges said the issue had taken eight years and 10 judges and was still not over.

The justices, many of them now retired, had accused Hlophe of trying to get justices Baaitse ''Bess'' Nkabinde and Chris Jafta to favour President Jacob Zuma in their judgment about him and arms company Thint. Hlophe had denied these claims.

The case related to the validity of searches during an investigation of Zuma and Thint. They were facing allegations of fraud and corruption in the country’s arms deal. Zuma’s corruption case was later withdrawn due to alleged political interference.

Nkabinde told fellow judge Yvonne Mokgoro what happened when Hlophe arrived at her office while they were writing the judgment. Mokgoro told her to report it, and the chief justice and the deputy chief justice were informed.

It emerged that Hlophe had dropped in on Jafta unannounced a few weeks before that. Jafta had warned Nkabinde about him before Hlophe arrived for a pre-arranged visit.

When Hlophe left her office, Nkabinde felt worried that Hlophe seemed to know what she was working on.

Rule change

The Judicial Service Commission eventually cleared Hlophe. The Western Cape premier and Freedom Under Law challenged this and a new hearing was ordered.

Jafta and Nkabinde had been challenging the procedures used for a misconduct hearing against Hlophe, saying it was important to get it right. They denied wanting to stop the hearing altogether.

When the complaint started in 2008, the JSC handled it in terms of its old rules. When the new hearing into Hlophe was started, the JSC’s rules had changed.

The two sticking points were that Nkabinde and Jafta had not made their complaint under oath, as required by the new rules, and that a prosecutor should not be allowed to be evidence gatherer in the JSC's newly-constituted Judicial Conduct Tribunal.

This could be a conflict of interest later, and it could also be seen as the executive interfering in the judiciary.

No quorum

The case has gone as far as the Constitutional Court. In March this year, it dismissed Nkabinde and Jafta’s application for leave to appeal. This was because it could not form a quorum as too many of the court's judges were connected to the complaint in some way.

Jafta and Nkabinde tried again: This time to get the dismissal of the application for leave to appeal rescinded because it was not decided on merits, and because they were not present for the hearing.

The judges refused, saying they still had the same problem with a quorum.

They added that most of the applications for leave to appeal that crossed their desks were decided at a conference of judges. Neither the public nor litigants were allowed to attend. They discussed the applications among themselves, and decided accordingly.

The cases they chose to hear in open court were likely to succeed, and had constitutional ramifications.

They agreed that the March application was not decided on the merits, but pointed out that it had already been heard by “no fewer than 10 judges” on its way to the Constitutional Court. All these judges had dismissed their applications.

“The events that gave rise to the complaint occurred in 2008.  Eight years later, the matter has not been finalised. It is in the interests of justice that this matter be brought to finality,'' said the judges.

Centre for Constitutional Rights director, Phephelaphi Dube, said the decision cleared the way for the tribunal to conduct disciplinary hearings into Hlophe's conduct.

“Justices Jafta and Nkabinde would have provided crucial evidence of this impropriety but they, instead, challenged the lawfulness of the tribunal that the JSC would have established. Eight years and numerous legal challenges later, it seems that this ruling will bring the matter to finality,” said Dube.

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