Hlophe case: Judges wanted fairness

2012-03-31 07:31

Johannesburg - Judges of the Constitutional Court said they were preserving the "fairness" of the court's process when they denied Western Cape Judge President John Hlophe's application for leave to appeal a misconduct case between him and themselves.

"The applications raise issues fundamental to the integrity of our judicial process," the long-awaited unanimous judgment said.

It was the first time the court, the highest in the country, had had to hear a case in which some of its judges were involved, and faced a conflict of interest.

The judges made no order on Hlophe's actual complaint, but the effect of their judgment is that the Judicial Service Commission (JSC) must reopen the complaint.

As they covered their interpretation of the Constitution on whether the Constitution allowed their recusal and only pronounced on the application for leave to appeal to them, they also included their insight into some aspects of the case.

In November, a slew of lawyers had presented options to the court on the recusal issue, after Hlophe decided to appeal two Supreme Court of Appeal (SCA) rulings that the JSC misconduct case against him be reopened.

He had not initially objected to the Constitutional Court judges hearing the case, but in court directions, the matter was raised, hence the November hearing on recusal.

The options presented to the judges in November included that they invoke a doctrine of necessity and hear the application for leave to appeal themselves; that they recuse themselves and let President Jacob Zuma appoint a new quorum (eight judges) for the case; or that the case be dismissed and the Supreme Court of Appeal (SCA) judgments be the last word on the matter.

Potential dangers

In Friday's judgment they said Section 175(1) of the Constitution allowed the appointment of an acting judge of the Constitutional court if there was a vacancy or if the judge was absent, or removed for gross misconduct or incapacitation. It did not mention recusal.

It had been argued that a recusal rendered a judge absent, but they said a recused judge was still required to perform the rest of their judicial duties and so could not be considered absent.

The judges said that in terms of the Constitution the president appointed acting judges on the recommendations of the minister of justice and the JSC.

But, there were "potential dangers" to judicial independence and the separation of powers in the appointment of individual judges to hear a specific case.

The judges said that even though the composition of the court had changed due to retirements and new appointments, potential conflict of interest remained.

Section 167(1) of the Constitution says the court must have 11 judges and Section 167(2) says a matter must be heard by eight judges, they explained. Six judges were already in the job when the Hlophe application was lodged and three had recused themselves from the hearing before it was argued, leaving the required eight.

But this included three who were parties to the complaint, and who had tried to mediate. If they were disqualified, then there would be no quorum.

Because the option of appointing acting judges was not available, they said, the applications must be dealt with in another way.

They said that in terms of the Constitution, everyone had the right to have any dispute resolved by law or in a fair public hearing. They also had the right to apply to the Constitutional Court for leave to appeal.

They did not have an automatic right of appeal, unless it was in the interests of justice.

They quoted Section 178 of the Constitution, which states that a premier of the High Court concerned should be appointed when considering matters relating to a specific High Court and said JSC decisions must be supported by a majority of its members.

This appeared to be a reference to Western Cape Premier Helen Zille's successful SCA challenge that she should have been part of the JSC preliminary inquiry, that the JSC was not properly constituted, and that there had not been a majority on the decision.

They wanted a balance between finality and possible injustice to Hlophe.


The underlying right Hlophe wanted to protect was a procedural one, they said.

"...The rejection of that right will result in the continuance of a process only and will not result, without more, in a finding against him on the substance of the complaint.

"What is more, the applicant has had the benefit of an appeal. These considerations mitigate the threat of injustice."

"In addition, although the parties have consented to the conflicted judges' sitting in the present matter, regard must still be had to the fact that they would ordinarily have to recuse themselves.

"For this reason, this court should deny leave to appeal to preserve the fairness of its own process."

In 2008, the judges told the media they had laid a complaint against Hlophe with the JSC, saying he had made an improper attempt to influence a case related to President Jacob Zuma.

Hlophe had counter complained that his rights were violated when the judges sent the media statement.

In a preliminary inquiry the JSC found no misconduct against either party but Legal advocacy body Freedom Under Law and Zille had challenged this in court.

Friday's judgment noted that the two SCA judgments meant: on the premier's challenge, the JSC must reconsider both complaints, and regarding FUL's application, it only had to reconsider the judges' complaint.

Zille issued a statement saying she was pleased with the judgment and was waiting to hear from the JSC.