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Kempton Park - Constitutional Court judges need to testify at the hearing into the misconduct complaint against Western Cape Judge President John Hlophe, a tribunal heard on Thursday.
“What is directly relevant to the evidence by Justice (Bess) Nkabinde and (Chris) Jafta is what occurred between that letter, when they said they were not complainants, and the letter which they signed saying they were co-complainants, and the position now adopted,” Courtenay Griffiths, QC, for Hlophe, said.
“It seems to us that the justices of the Constitutional Court that were present during the discussions, which led to a joint statement, are in a position to give relevant evidence.”
Hlophe's legal team wanted Deputy Chief Justice Dikgang Moseneke in particular to attend the hearing.
In 2008, Nkabinde and Jafta, in a joint letter, said they did not want to proceed with a complaint against Hlophe. However, subsequent to that the two were part of a co-complaint lodged collectively by all Constitutional Court judges.
The misconduct complaint was lodged against Hlophe in 2008. He allegedly tried to influence Jafta and Nkabinde to make a ruling favouring President Jacob Zuma. The two judges were considering a judgment in the corruption case relating to Zuma and arms company Thint's role in the multi-billion rand arms deal.
The Judicial Service Commission tribunal ruled on Thursday that the misconduct hearing should proceed, despite objections by Nkabinde, Jafta, and Hlophe.
After the ruling, Griffiths said his client was ready to go ahead with the matter which had been dragging on for five years.
“There ought to be no delay until Tuesday. These unsavoury, protracted proceedings have gone on for too long. We want to proceed now, we insist on starting now.”
He accused Moseneke of further delaying the matter by not attending the hearing.
“The learned deputy chief justice has had five years to get his act together,” Griffiths said.
He wanted Gilbert Marcus, SC, for the Constitutional Court judges, excluding Jafta and Nkabinde, to provide Hlophe's legal team with a list of witnesses he intended to call and what he intended to call them about. He wanted minutes of meetings held in 2008 between the Constitutional Court judges.
Marcus said his clients were ready to testify.
“Those we represent, if required to testify they will make themselves available to do so without the necessity for a subpoena,” he said.
However, he said the evidence was in the hands of evidence leader Xoliswa Khanyile. Khanyile had said she intended subpoenaing Jafta and Nkabinde to testify.
“I have discussed this matter since September 19 with the two counsel representing the two judges... These are the only judges I intend calling. I was even thinking of issuing a subpoena.”
Tribunal president, retired judge Joop Labuschagne, adjourned the hearing to Tuesday 10am, saying the adjournment would be fair to all the parties involved.