Hlophe tribunal to announce if it’s legitimate

2013-10-01 13:59

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The judicial conduct tribunal which is supposed to determine if Western Cape Judge President John Hlophe is guilty of misconduct will on Thursday announce whether it considers itself “legitimate”.

This comes after lawyers representing the two justices of the ConCourt at the centre of the matter today argued stridently that they have a “right not to testify before an illegitimate structure”.

Selby Mbenenge, who is representing justices Chris Jafta and Bess Nkabinde, the two justices Hlophe allegedly tried to influence in favour of President Jacob Zuma, said that the tribunal should not even be postponed, it should just “pack up and go”.

Mbenenge has argued on behalf of the two justices that the rules which apply to the proceedings are those which were in force before the Judicial Service Commission (JSC) Act was amended in 2010.

The JSC Act required that the rules be published in the government gazette by the Minister of Justice, something that was never done.

For this reason, argues Mbengenge, the tribunal – which was appointed in terms of the amended legislation – is “not a properly appointed structure”.

Mbenenge has argued that if he is wrong, and the new rules apply, they will then rely on an argument which was yesterday advanced by Hlophe’s legal team.

This argument is based on the fact that the JSC has since last year dealt with this matter under the new act.

The amended act requires a complaint against a judge to be contained in an affidavit or affirmed statement.

Lawyers for Hlophe and Nkabinde and Jafta say that there is no such valid complaint before the court in this matter.

They are arguing that Nkabinde and Jafta had never intended to be individual complainants in this matter.

Gilbert Marcus, who is representing other judges of the Constitutional Court, is however arguing that the “pedigree of rules with which we are concerned derives from the rule-making power conferred on the JSC by the Constitution”.

Marcus said that it was an “extraordinarily drastic argument” to state that a subsequent publication requirement contained in legislation could invalidate a power conferred by the Constitution.

Xolisile Khanyile, the evidence leader who has been appointed, said it was “really absurd” to read the new amendment act as nullifying all the complaints that came before it.

She said the “issues raised here should be decided by a court”.

“I don’t think this tribunal can invalidate itself.”

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