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Pretoria - Two of the Constitutional Court judges who initiated a gross misconduct complaint against Judge John Hlophe have officially broken ranks with the rest of their colleagues, effectively throwing the Judicial Conduct Tribunal matter into disarray.
The Star can reveal that justices Chris Jafta and Bess Nkabinde filed a pre-trial motion two weeks ago questioning the validity of their own case.
The three-page notice, not formally tabled before the tribunal but obtained by The Star, was filed by the pair’s legal representatives on September 20, a day before a pre-hearing conference.
Five years after accusing Judge Hlophe of improperly influencing them to make rulings favourable to President Jacob Zuma, justices Nkabinde and Jafta made a U-turn.
Filed by the State Attorneys’ Cape Town office on the duo’s behalf, the motion was addressed to the tribunal’s secretary, evidence leader Xolisile Khanyile, the Judicial Service Commission (JSC) secretariat and Xulu Liversage attorneys, the law firm representing Judge Hlophe.
They insisted that the case they laid as part of a Constitutional Court “collective” should not be entertained by the tribunal because its jurisdictional fact was “lacking”.
Justices Nkabinde and Jafta reminded all parties that in terms of section 14 (3) of the JSC Act 9 of 1994, a complaint must be lodged by means of an affidavit or affirmed statement specifying the nature of the complaint and the facts on which is it based.
They maintained that, according to the records furnished to them, “no such complaint on oath or affirmation has been availed”.
The pair made it clear they were under no obligation to attend the tribunal unless and until the “defect” had been “cured”.
“Please take notice, therefore, that at the pre-hearing conference scheduled for tomorrow, Saturday, September 21, 2013, the justices will require the parties hereto to admit that the requisite complaint is lacking, with the result that the Judicial Conduct Tribunal may not entertain the matter,” the notice says.
Justices Jafta and Nkabinde were subsequently represented by their own legal team at the tribunal, led by Selby Mbenenge SC, while Gilbert Marcus SC represented their colleagues.
A source close to Marcus’s team said justices Jafta and Nkabinde’s decision to break ranks had made the case against Judge Hlophe difficult to pursue.
“They changed their minds recently. They filed that notice challenging the validity of the complaint to which they were part. This is what complicates the hearing. It seems they are now in solidarity with Hlophe because there are tensions in the Bench. They feel a black judge should not be left to hang,” said the source.
During his submission at the hearing on Tuesday, Mbenenge’s colleague, Bantubonke Tokota, denied that justices Jafta and Nkabinde had been “inconsistent” by initiating charges before later denying they were the complainants.
He said the pair had always maintained they complained as part of a “collective”, not as individuals.
After the parties failed to break the impasse on the validity of the complaint, applicable rules and the legitimacy of the hearing, tribunal president Joop Labuschagne was forced to postpone it to Thursday.
This came as Marcus and Khanyile endured what appeared to be a frustrating day. They seemed to be battling to mount a strong case against Judge Hlophe without justices Jafta and Nkabinde as witnesses.
Sensing victory, Judge Hlophe’s legal team had gone for the jugular, asking the tribunal for an order forcing his accusers to pay his full legal fees.
Marcus objected, saying “the tribunal doesn’t have the power to make an order of costs”.
He also stuck to his guns that Judge Hlophe had a case to answer.
Mbenenge reiterated that justices Jafta and Nkabinde had the right not to testify before an “illegitimate structure”.