Application to reopen Hlophe probe dismissed

An application by legal advocacy body Freedom Under Law to force the Judicial Service Commission to reopen its investigation into Western Cape Judge President John Hlophe has been dismissed in the High Court in Pretoria.

Freedom Under Law applied to the court to set aside four different decisions by the Judicial Service Commission in respect of a complaint by 13 Constitutional Court judges, who accused Hlophe of gross misconduct, and his counter-complaint against them.

The organisation also wanted the court to order the Judicial Service Commission to hold a formal inquiry into the complaints.

The judges accused Hlophe of trying to improperly influence judgments in pending judgments involving Jacob Zuma before he became president.


Hlophe in turn accused the judges of violating his constitutional rights by publishing their complaint before lodging it with the Judicial Service Commission and before giving him a hearing.

The Judicial Service Commission in August last year decided to discontinue investigations by announcing the matter as finalised.

Freedom Under Law contended that the only way to restore the public’s trust in the judiciary was a full public inquiry, and that the Judicial Service Commission’s decision not to continue with the investigation threatened the rule of law and the country’s future as a democracy.

Freedom Under Law argued that when judges were accused of gross misconduct, the Judicial Service Commission had to undertake an investigation to vindicate the judges who were innocent and to condemn those who were not.

Hlophe, who opposed the application, accused Freedom Under Law of having an attitude that they knew better and simply dismissing the attitude of the judges concerned as being irrelevant.

The court was told that Hlophe had no intention of pursuing his countercomplaint against the Constitutional Court judges and that the judges had also accepted the Judicial Service Commission’s findings.

Judge Peter Mabuse ruled against Freedom Under Law yesterday on every legal argument raised in support of their application.

He stressed that it was not the court’s duty to determine the veracity of the complaint and countercomplaint, but to establish if the Judicial Service Commission had followed the procedure laid down in its rules when it considered the complaints.

Mabuse said he was satisfied that there was no merit in Freedom Under Law’s complaint that two of the commissioners involved in the decision – Andiswa Ndoni of the Black Lawyers’ Association and Advocate Ismail Semenya of Advocates For Transformation – were biased and should not have participated.

He found that the Judicial Service Commission had been properly constituted and entitled to make the decision it took not to continue with the matters. The decision was also supported by the majority of members.

Mabuse said he agreed with the argument advanced by the Judicial Service Commission that it was objective in considering and determining the complaint and countercomplaint, and found that the decision had been rational.

“Having considered all the evidence, the Judicial Service Commission found that there was no prima facie evidence which, if proven, could establish a case of gross misconduct against any one of the parties.

“That is the end of the inquiry by the Judicial Service Commission.

“It would be wrong for the Judicial Service Commission to extend its inquiry beyond what it was required to do,” Mabuse concluded.

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