Asmal presses on with Hlophe case

2009-12-24 09:08

ANC veteran Kader Asmal has applied to join in proceedings to set

aside the Judicial Service Commission’s (JSC) decision not to hold a formal

hearing on the dispute between Western Cape Judge President John Hlophe and

Constitutional Court judges, the Business Day reported today.

His application to be a friend of the court follows refusals by

Hlophe and the JSC to consent to his joining the case.

The dispute between the judges began in May last year when 13

Constitutional Court judges complained to the JSC, alleging Hlophe sought

improperly to influence the outcome of Constitutional Court cases involving ANC

president Jacob Zuma.

Hlophe counter-claimed that the Constitutional Court judges had

breached his constitutional rights by not first affording him a hearing and by

publicising their complaint.

The increasingly bitter dispute divided the legal fraternity, and

rocked the judiciary. It dragged on for more than a year, involving several

court cases, many delays and changes to the make-up of the JSC.

Eventually, the JSC decided not to proceed to a formal hearing with

cross-examination, and cleared all involved of gross misconduct.

The finding opened the way for Hlophe’s application to be appointed

to the Constitutional Court this year. The decision provoked criticism and led

to a high court review application by Freedom Under Law, headed by former

Constitutional Court Judge Johann Kriegler.

When the JSC did not appoint Hlophe to the highest court, some in

the legal fraternity thought Freedom Under Law should have abandoned its review


They believed the dispute should end and the judiciary allowed to


But Freedom Under Law, which from the beginning said its case was

not about Hlophe, pressed on. It said the case involved broader issues,

including the rule of law and the JSC’s constitutional mandate.

Asmal’s application signifies his determination not to let the

constitutional issues raised go away.

Asmal’s attorney, Asmita Thakor of Webber Wentzel attorneys, said

in papers Asmal would be making submissions on legal issues not raised by

Freedom Under Law.

These included the effect of the JSC’s decision on the separation

of executive, legislative and judicial powers and on everyone’s right to have

disputes decided by an independent and impartial forum.

As the JSC was the only body that could deal with the allegations

of gross misconduct, it was obliged to decide the dispute by making “whatever

factual and/or legal findings are called for in the case”, Thakor said.

Asmal said he would also argue on international and foreign


Freedom Under Law consented to Asmal’s request, and the

Constitutional Court judges said they had no objection.


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