JSC might look for consensus on Hlophe

2011-04-07 07:08

The Judicial Service Commission (JSC) may ask for representations by Western Cape premier Helen Zille and Freedom Under Law on how to proceed with the complaint against Western Cape Judge President John Hlophe.

Spokesperson Dumisa Ntsebeza said that the JSC was taking the view that to challenge last week’s Supreme Court of Appeal ruling setting aside its decision to clear Hlophe of gross misconduct would be “indulgent”, and it wanted to avoid further litigation in the long-running legal saga.

“It may well be that what the JSC will do is to invite all the parties that were party to the litigation to submit memorandums each as to how they see the further conduct of this matter,” he said.

“Because the JSC having taken the decision to abide by the decisions of the Supreme Court of Appeal, would not like to find itself in a position that whatever it does becomes again the subject matter of further litigation.”

Ntsebeza said though there was no formal decision yet not to take the matter to the Constitutional Court, it was expected that the JSC’s litigation committee would recommend that it did not appeal last week’s judgments.

“That committee is going to recommend to the JSC that the JSC should not appeal the decisions of the Supreme Court of Appeal to the higher court as it would be indulgent to do so,” Ntzebeza said.

“The attitude to be adopted by the JSC is that it abides by the decisions of the Supreme Court of Appeal.”

This, however, raised the question of whether it should deal with the matter according to the process set out in an
amendment to the Judicial Service Commission Act, which came into force in June.

The law prescribed the establishment of a judicial conduct committee made up of Supreme Court of Appeal and three other judges. The committee is made up of Chief Justice Sandile Ngcobo, Deputy Chief Justice Dikgang Moseneke, Supreme Court of Appeal President Lex Mpati and four other judges.

Last week’s judgments in two separate cases brought by Zille and non-profit organisation Freedom Under Law found the JSC’s decision not to hold a formal inquiry into the dispute between Judge Hlophe and the justices of the Constitutional Court was invalid.

“That solves what is wrong, it does not say how it must be fixed, particularly given that there is now a new law in place,” Ntsebeza said.

“That creates a problem because you either read that act retrospectively ... or you say there is a new law but because the complaints took place at a time when this new law was not yet in place you proceed in terms of the processes that were applicable before the new amendment.”

The divisive dispute between Hlophe and justices of the Constitutional Court dates back to 2008 when they complained that he had sought to influence two judges on judgments connected to corruption charges against President Jacob Zuma.

Hlophe filed a counter complaint that the way the judges had gone about their complaint had breached his constitutional rights.

The JSC finally decided that there was insufficient evidence for both the complaints.

In the wake of the decision, Zille went to court claiming that the commission’s decision was invalid because the body had not been properly constituted at the time.

She won in the Western Cape High Court but the JSC appealed.

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