DIANNE HAWKER
On Thursday two separate Supreme Court of Appeal judgments slammed the process used by the Judicial Service Commission (JSC) to adjudicate the complaint by Constitutional Court judges against Western Cape Judge President John Hlophe.
Upholding a decision by the Western Cape High Court, in an application brought by Premier Helen Zille, the SCA agreed that the JSC had not been properly constituted when it decided on the complaint against Hlophe and the counter-complaint he laid against the Concourt judges.
In 2008 the entire bench of the Constitutional Court was pitted against Hlophe – an already embattled character whose reputation was tainted over a previous complaint involving the alleged non-disclosure of a monthly retainer from financial services firm Oasis.
The complaint against Hlophe arose from conversations he had had with Justice Bess Nkabinde and Acting Justice Chris Jafta in which he allegedly suggested “without invitation” that the court should rule in favour of President Jacob Zuma.
Hlophe had lodged a counter-complaint against the entire Concourt bench, saying his rights had been violated when the court released a public statement on the complaint before speaking to him.
After meeting in mid 2009 the JSC decided that none of the judges were guilty of gross misconduct.
However, in the Zille judgment the SCA found that they had no choice but to find the JSC had acted against its constitutional mandate.
Pointing to section 172 of the Constitution, Judge Cloete wrote: “The declaratory order had to be made. There is no discretion.”
“I pause to remark that it would indeed be a sorry day for our constitutional democracy were serious allegations of judicial misconduct to be swept under the carpet for reasons of pragmatism and practicality, as suggested by the JSC.
The public interest demands that the allegations be properly investigated, irrespective of the wishes of those involved,” he wrote.
Meanwhile, a second judgment delivered in a separate application by the Freedom Under Law non-profit organisation concluded that the decision not to hold a formal enquiry, including cross examination and later decision to dismiss the complaints should be reviewed.
The court found it was irrational to disregard Judge Nkabinde’s evidence because it contradicted Hlophe’s version of events.
“Hlophe JP contradicted almost everything that Nkabinde J said. It follows that the JSC considered virtually everything that Nkabinde J said ie virtually everything on the strength of which she drew the inference that Hlophe JP tried to influence her, to be immaterial in respect of the question whether he tried to influence her. It cannot conceivably, rationally be considered to be immaterial to the question whether Hlophe JP tried to influence Nkabinde J...” Judge Piet Streicher wrote.
However it did not overturn the decision to dismiss Hlophe’s complaint against the Concourt judges.