Leila Samodien
Justice Writer
EX-FIDENTIA boss Arthur Brown has become embroiled in a legal wrangle between the Cape Bar Council and the Judicial Service Commission which could jeopardise several high-profile Western Cape judgments.
The dispute has opened the door for Brown to challenge a Western Cape High Court decision to dismiss his “stay of prosecution” application. This was on the basis that the appointment of Judge Robert Henney, who made the decision, is “invalid”.
Brown faces nine criminal charges for fraud, corruption, theft and money laundering.
He brought a civil application in the high court last year to stop the authorities from prosecuting him. Judge Henney dismissed the application in September.
But Brown has now lodged an application for leave to appeal Judge Henney’s judgment in the Supreme Court of Appeal (SCA).
In this application, Brown cites another Western Cape High Court judgment – which stems from an ongoing legal struggle between the Cape Bar Council and the Judicial Service Commission – as the basis for his appeal.
The judgment found that the commission’s sitting on April 12 last year, during which it interviewed candidates for the Western Cape Bench, was invalid.
This was because the commission was not properly constituted, as neither SCA Judge Lex Mpati nor his deputy was present for the sitting.
The commission took the matter on appeal and it was argued in the SCA yesterday.
Brown’s application for leave to appeal was attached to some of the
court documents submitted to the SCA by the commission.
In his grounds for appeal, Brown incorrectly states that the judgment was an SCA decision, rather than a high court one.
He maintains, however, that by virtue of the judgment, “the appointment of [Judge Henney] is invalid, and therefore he was not properly appointed to the Bench and could not have [presided] over the matter”.
Brown’s trial is set down to begin in the high court on October 10.
But his attorney, June Marks, confirmed that they were “hedging all our bets” and were pressing ahead with the application for leave to appeal.
She said she had also spoken to the legal team of taxi driver Jacob Humphreys – jailed for murder after he caused a crash that killed 10 schoolchildren – who were also awaiting the SCA’s decision on the validity of the commission’s sitting before deciding their next move.
“If [Judge] Henney’s appointment is set aside, that puts us all back into the picture to start from scratch [with our court cases],” she said.
Judge Henney is presiding over the high-profile trial of Xolile Mngeni, the alleged hitman in the murder of UK honeymooner Anni Dewani.
The Judicial Service Commission’s state attorney, Leon Manuel, said in an affidavit that Brown’s application to the commission was “the first real evidence of what until now has only been regarded as a theoretical possibility”.
“All the JSC wishes to highlight is the real impact of the [Western Cape High Court] judgment on Judge Henney, which impact is demonstrated by the fact that there is already a litigant who is willing to take advantage of the declaration that the JSC’s proceedings of 12 April, 2011, are unlawful and unconstitutional and to challenge the authority of Judge Henney’s judgment issued in his case,” said Manuel.
However, in court documents, the bar council said Brown’s application was based on the incorrect premise that Judge Henney’s appointment was invalid.