INDEPENDENT NEWSPAPERS
Judge John Hlophe. Photo: Bongiwe Mchunu
A slew of complications arose in the Constitutional Court on Tuesday as it considered a conflict of interest dilemma, from a misconduct complaint that judges of the court laid against Western Cape Judge President John Hlophe.
“This is a complex matter…” said Kgomosoane Mathipa, rounding off a preliminary hearing that comprised oral submissions by 10 lawyers.
Hlophe has approached the Constitutional Court with an application related to the charge brought against him three years ago.
As submissions of the conflict of interest were debated, the judges tried to cover every possible way of proceeding, with Chief Justice Mogoeng Mogoeng slashing time off comfort breaks.
Their options included:
• invoke a doctrine of necessity and hear the application for leave to appeal themselves;
• recuse themselves for the case and let President Jacob Zuma appoint a new quoroum (eight judges) for the case; or
• that they dismiss the case and let the Supreme Court of Appeal (SCA) judgment stand and be the last word on the matter, as is done in some other democracies.
The judges did not hear the merits of the actual appeal, nor the application for leave to appeal.
Some of the complications included:
• If they recuse themselves and acting judges are appointed in terms of Section 175 of the Constitution, there might be a problem because President Jacob Zuma appoints judges.
Zuma might be an interested party due to the details of the misconduct complaint that emerged during the Judicial Service Commission (JSC) preliminary hearing, even though the court heard that he had not “articulated” an interest in the matter;
• The JSC, which includes Justice Minister Jeff Radebe on its committee, recommends judges to the president for appointment, so they could also face complications, having received the complaint, and run the questioning at the preliminary inquiry.
• If an “ad hoc” quorum was established it could diminish the stature of the Constitutional Court as the highest court of the land on constitutional matters.
• Not finding a way of hearing the matter at the Constitutional Court could confer the power of the final say to the SCA, a power which it does not have.
• The court would not know how to deal with a similar matter in future.
This aspect brought some levity into the hearing with the judges and lawyers enjoying a running joke on a hypothesis of 11 judges walking into a bar, which was quickly amended to them attending a justice conference, and becoming incapacitated.
“Only by the food…” quipped Mogoeng.
Other scenarios were:
Would it be okay for a judge to recuse himself because the matter involved the integrity of a colleague?
• If the SCA ruling stood, would it be fair to make Hlophe go through an inquiry again?
• If the matter is never heard at the Constitutional Court, would that violate Hlophe’s rights to access the highest court of the land?
“This court must take a stand and make a decision on how the matter proceeds,” said Hlophe’s lawyer Thabani Masuku.
It had been the most traumatic experience Hlophe had as a judge, and the allegations against him kept being “recycled”.
The judges also tried to figure out what constitutes an “absence” that would allow the appointment of an acting judge.
Would they be considered absent if they were at court, but confined themselves to their chambers?
In 2008, the judges surprised the media with a statement that they had laid a complaint against Hlophe with the JSC saying that he had made an improper attempt to influence a case.
It later emerged that the case related to one of President Zuma and arms company Thint’s court challenges in a now abandoned corruption case.
Hlophe’s challenge to the complaint set off a trail of legal applications.
The JSC meanwhile, held a hearing where Constitutional Court Judges Yvonne Nkabinde, Chris Jafta, and Deputy Chief Justice Dikgang Moseneke testified.
The commission found there was insufficient evidence for the complaints and left the matter at that.
However, legal advocacy body Freedom Under Law applied to the High Court in Pretoria to have the JSC re-open its investigation into Hlophe, but the case was dismissed.
Democratic Alliance leader Helen Zille lodged a similar case in the Cape High Court.
The High Court found in Zille’s favour that the JSC’s decision was “unconstitutional and invalid” because it had excluded her as premier and was therefore not constituted properly.
The JSC then appealed and lost at the Supreme Court of Appeal. The JSC bowed out at SCA level, but Hlophe then moved on to the Constitutional Court.
Judgment was reserved. – Sapa
Read the article:
Concourt’s Hlophe case dilemma