Judicial Conduct Tribunal postponed after judge recuses himself

2018-07-02 13:18
Western Cape Judge President John Hlophe. (Trevor Samson, The Times, Gallo Images, file)

Western Cape Judge President John Hlophe. (Trevor Samson, The Times, Gallo Images, file)

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The Judicial Conduct Tribunal set up to hear complaints against Western Cape High Court Judge President John Hlophe has hit yet another snag.

It could not go ahead on Monday after Judge Cagney Musi recused himself.

The tribunal was set up in 2013 on the recommendation of a subcommittee of the Judicial Service Commission, the Judicial Conduct Committee.

READ: Judge President Hlophe to appear before Judicial Conduct Tribunal

It was tasked with investigating complaints laid against Hlophe after he allegedly attempted to influence Constitutional Court judges in a case involving former president Jacob Zuma.

The alleged incident is traced back to a complaint laid by the full Constitutional Court Bench, which alleges that Hlophe approached Justice Bess Nkabinde and Justice Christopher Jafta and attempted to improperly influence them in a matter before the court.

Allegations of disparaging remarks against Hlophe

Musi told the tribunal in Sandton on Monday that his decision to recuse himself comes after Hlophe called him in May this year and made ex parte communications, including asking Musi to recuse himself.

"I have therefore decided that the best course in this matter is for me to recuse myself and allow another judge to be appointed in this matter," Musi said.

READ: No explanation as to why Cape Judge President John Hlophe has 16 outstanding judgments

Musi also said that Hlophe's request for his recusal, which was done via a phone call as well as a letter, was based on allegations that Musi had made disparaging remarks about Hlophe to other judges in 2017.

This was after the Supreme Court of Appeal had set aside one of Hlophe's judgments.

Musi denied these allegations during his conversation with Hlophe. During that call, he told Hlophe he was not prepared to recuse himself and that the affidavit which forms the basis of the allegations was based entirely on hearsay evidence.

He added that the affidavit also forms the basis of a complaint against him.

Recusal welcomed

Advocate Thabani Masuku, SC, for Hlophe, welcomed the recusal, but hit back at Musi, saying he didn't deny the allegations and that through the statement he made, he was now giving evidence.

"I appreciate his decision to recuse himself, as he is disqualified from sitting here. What I find unsatisfactory is his statement," said Masuku.

Evidence leader advocate Ivy Thenga pointed out that that these complaints were made nearly a decade ago and that there was a need to have this tribunal deal with the complaints expediently.

She added that both Nkabinde and Jafta were at the tribunal on Monday, ready to testify.

Hearings postponed indefinitely

Judge Joop Labuschagne postponed the hearings indefinitely as the chief justice will now have to appoint another judge to sit on the tribunal.

News24's sister publication City Press reported that should Hlophe be found guilty, he will be at risk of becoming the first judge in democratic South Africa to be impeached.

The matter has endured a circuitous and often arduous route over the past decade with various Judicial Service Commission decisions made and processes set up - many of which were challenged in the courts.

Nkabinde and Jafta argued several technical points about the legality of the tribunal, including that it trespassed on the separation of powers doctrine because a member of the prosecuting authority was to lead evidence.

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