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Johannesburg - Cape Judge President John Hlophe’s lawyers have tried to exploit the new Judicial Service Commission (JSC) laws to cast doubt on the validity of the gross misconduct case against him.
Insisting that the case against Judge Hlophe be quashed because there was no “genuine” complainant, they suggested that the fact that Constitutional Court judges Chris Jafta and Bess Nkabinde were refusing to give sworn statements and subject themselves to cross-examination was proof that they were being forced to pursue the case.
The five-year-old case was heard by the Judicial Conduct Tribunal, chaired by retired Justice Johann Kriegler, in Kempton Park on Monday.
It followed a 2008 complaint laid by all Constitutional Court judges who accused Judge Hlophe of having tried to influence justices Jafta and Nkabinde into making a ruling favourable to President Jacob Zuma.
But on Monday, the JSC Amendment Act, which came into place on June 1, 2010 and changed the process of laying complaints against judges, was at the centre of arguments for and against Judge Hlophe.
In terms of the old JSC rules, complainants were not required to give sworn affidavits or give statements under oath.
But section 14 of the JSC Amendment Act requires them to do so, opening the door for them to be charged with perjury if they change their minds and decide not to pursue the complaints.
Courtenay Griffiths QC, for Judge Hlophe, sought to exploit the new rules in a bid to have the charge against his client declared invalid. The UK barrister, who represented ex-Liberian president Charles Taylor at the Special Court for Sierra Leone in The Hague, argued against the use of the old rules as the tribunal, he said, existed on the basis of the new laws.
However, he also argued that Judge Hlophe had no case to answer to in terms of section 14 because justices Jafta and Nkabinde had refused to give sworn statements, appear before the tribunal to confirm their complaint and subject themselves to cross-examination.
“This tribunal was set up on the basis that the new act and protocol should apply. That’s crystal clear. That’s the basis upon which we are pursuing. We have every right to do that,” said Griffiths.
He insisted that evidence the duo gave at previous hearings could not be used against Judge Hlophe because they were not cross-examined.
Griffiths also suggested that the tribunal was trying to force the two to lodge a complaint against Judge Hlophe instead of them doing this voluntarily.
But tribunal evidence leader Xolisile Khanyisile dismissed this, saying it was absurd to expect the new rules to render pending complaints invalid.
“To say a case that was valid in 2008 is no longer valid in 2013 simply because the laws have changed would really be absurd. The new amendment act did not amend the prior act more than necessary.”
He said it was never Parliament’s intention for the new law to declare pending cases null and void.
Gilbert Marcus SC, for the Constitutional Court judges who laid the complaint, excluding justices Jafta and Nkabinde, shared Khanyisile’s sentiment.
He said even if the statutes had been changed, the complainants retained their right to have the case decided in accordance with the laws that were applicable at the time of the complaint.
“As a point of departure, we, with great respect, simply submit that reliance on section 14 is misplaced. It simply has no application to completed transactions such as this complaint lodged on May 30, 2008, and supplemented on June 17 in accordance with the then prevailing law.”
He said there was a strong case against Judge Hlophe because he tried not only to influence justices Nkabinde and Jafta, but all the Constitutional Court judges to undermine the rule of law, judicial fairness and impartiality.
“What is absolutely clear is that we have before this tribunal credible evidence which gives rise to a prima facie case of gross misconduct.”
Marcus argued that the JSC had wide powers to probe judges’ conduct, adding that it would be a dereliction of duty on its part if it were to fail to investigate a case of apparent misconduct simply because there was no complainant.
Marcus reminded the tribunal that 13 people – 11 Constitutional Court judges and two acting judges – had complained about Judge Hlophe. He said justices Dikgang Moseneke, Kate O’Regan and Yvonne Mokgoro were prepared to testify before the tribunal.
Advocate Selby Mbenenge, for justices Jafta and Nkabinde, said the new JSC Act should not affect the Hlophe hearing because his case was pending when the amendment was made last year.
The hearing continues on Tuesday.
Judge Hlophe’s misconduct case so far
2004: Judge Hlophe compiles a report on racism in the Western Cape High Court.
2005: Hlophe is accused of making derogatory, racist comments against attorney Joshua Greeff.
2006: A case of unethical behaviour is filed against Hlophe before the Judicial Service Commission for receiving remuneration outside his official duties.
MARCH 2008: The Constitutional Court hears argument in matters relating to the corruption charges against Jacob Zuma.
MAY 2008: Judges Chris Jafta and Bess Nkabinde lay a gross misconduct complaint against Hlophe.
EARLY JUNE 2008: Hlophe demands the specifics of the complaint against him.
AUGUST 2009: The JSC finds that the evidence before them does not constitute gross misconduct on Hlophe’s part.
OCTOBER 2009: Non-profit organisation Freedom Under Law launches a court action, followed by DA leader Helen Zille in February 2010, challenging the JSC’s decision.
JUNE 1, 2010: The JSC Amendment Act comes into place.
2012: Hlophe says in a newspaper interview his racism report was the reason for his current troubles.
MARCH 2012: After a long battle, a Concourt order effectively requires the complaint to be considered afresh.
OCTOBER 2012: The JSC says Hlophe must be hauled before a tribunal under the JSC Amendment Act.
SEPTEMBER 2013: Hlophe, Jafta and Nkabinde challenge the validity of the complaint before the tribunal.