Will ‘cleared’ Hlophe win Concourt bid?

2009-09-01 08:14

THE Judicial Service Commission (JSC) will again come under scrutiny when it

interviews 22 of the country’s top jurists for four posts in the Constitutional

Court this weekend.

The most pressing question is whether the JSC will consider appointing Western Cape Judge President John Hlophe to the Constitutional Court bench. Hlophe, who was on Friday let off the hook following allegations that he had sought to influence two Constitutional Court judges – Bess Nkabinde and Chris Jafta – is among the 22 Constitutional


Hlophe, according to documents before the Constitutional Court, had expressed a desire to be a member of the Constitutional Court as he had “outgrown” the Western Cape division. Will the JSC, an organisation that should insist on the integrity of members of the Constitutional Court, consider Hlophe as a fit person for a post, given the controversy surrounding him?

In its findings on Hlophe in the Jacob Zuma cases, the JSC said it accepted

that Hlophe “did in fact talk to judges Nkabinde and Jafta about the Zuma/Thint

cases”, that “in the course of those conversations, among other things, Hlophe

said that the cases and some of the legal issues that they raised were important

and urged that they be decided properly”.

“The commission accepted that it might have been unwise and imprudent for

Hlophe JP to talk to the judges about the cases and make the comments that he

did. But it is not persuaded that Hlophe JP’s actions make him guilty of gross

misconduct,” the JSC said.

Pierre de Vos, a constitutional law expert, said the JSC’s decision would

make it difficult for Hlophe to be elevated to the Constitutional Court because

this was the second time the JSC had found his conduct to be not proper for a

person aspiring to be a judge.

“It is the second time that they have found that he has acted in a way that

is not fit for a judge, although their decision found that this was not gross misconduct,” he said. A minority, four JSC members, disagreed that the charges against Hlophe should be dropped. The group said there were disputes of fact which could only be resolved through a formal hearing.

“The issues raised a call for a full and open ventilation,” the group said in

their statement.

On Friday, Independent Democrats leader Patricia de Lille came out in support

of the minority decision, saying the correct decision would have been that the

issue be decided after a full cross-examination.

“It is such a pity that we have allowed a ‘celebrity judge’ to taint the

judiciary and the JSC at the same time,” said De Lille, who is also a member of

the JSC.

Writing in her weekly newsletter, South Africa Today, Democratic Alliance

leader Helen Zille said the JSC’s decision not to proceed with an investigation

into Hlophe’s conduct cast a dark cloud over the entire judiciary.

“It reflects both the outcome of the ANC’s attainment of a majority on the

Judicial Service Commission, and the lengths to which the ANC will go to repay

political favours – even to the detriment and subversion of our democracy,” she


ANC spokesperson Brian Sokutu said the JSC had ended uncertainty about Hlophe’s future and the instability that had rocked the Western Cape bench. “We are happy that Judge Hlophe is set to go on with his life on the bench and resume his duties,” said Sokutu. “The ANC welcomes the ruling … which is

bound to restore public confidence in the South African judiciary.”

Hlophe is expected to report back to work tomorrow.

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