Judicial Service Commission and Hlophe appeal dismissed

2011-03-31 13:50

The Supreme Court of Appeal on Thursday dismissed an appeal by the Judicial Service Commission (JSC) and the Judge President of the Western Cape High Court, John Hlophe, in regard to possible disciplinary hearings against Hlophe.

The Supreme Court of Appeal held that the JSC was not properly constituted, and did not act with the requisite majority when it dismissed a complaint lodged by justices of the Constitutional Court against Hlophe in 2009.

The JSC proceedings and its decision were declared unconstitutional and set aside.

The justices complained that Hlophe had improperly sought to influence two of them in a case involving President Jacob Zuma before he became president.

The Supreme Court of Appeal also held that in terms of the Constitution, the Premier of the Western Cape, Helen Zille, was entitled to be present when the complaint was considered by the JSC.

Zille had brought the application in the High Court against the acting chairperson of the JSC, the JSC itself, past and present justices of the Constitutional Court and the Judge President of the Western Cape.

She did not ask for any relief against the Justices, who were cited because of the interest they might have in the application.

During the appeal hearing in the Supreme Court of Appeal, the JSC submitted that the decisions taken should not be set aside because of considerations of pragmatism and practicality.

However, in a unanimous judgment, five appeal court judges held that it would be a sorry day for the country’s constitutional democracy if serious allegations of judicial misconduct were swept under the carpet for such reasons.

The JSC was also criticised for its initial refusal to disclose how many people had voted for and against a resolution to drop an investigation into the alleged misconduct charges against Hlophe.

Hlophe had argued in the Supreme Court of Appeal that setting aside the decisions of the JSC would be an exercise in futility because Zille had disqualified herself from sitting on the JSC because of bias.

The Supreme Court of Appeal rejected the argument.

The Bloemfontein court found that the JSC had not performed its constitutional mandate to consider and make findings on whether there was judicial misconduct on the part of Hlophe.

The Supreme Court of Appeal judgment found it necessary that the findings of the JSC be set aside to enable it to perform the function which it was still obliged to perform under the Constitution.

The appeal by the JSC and Hlophe was dismissed and they were ordered to pay Zille’s legal costs.

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