FILE PHOTO: Cape Judge President John Hlophe. Picture: Dumisani Sibeko

Cape Town - Western Cape Judge President John Hlophe could face a judicial conduct tribunal, with the threat of impeachment, if a recommendation by the judicial conduct committee is accepted.

The committee - a panel of judges - has recommended that a judicial conduct tribunal investigate a complaint levelled against Judge Hlophe four years ago by the the then-justices of the Constitutional Court.

The committee said on Thursday it had found that if the complaint was valid, it would “indicate gross misconduct which may lead to impeachment”.

Its recommendation has been submitted to the Judicial Service Commission (JSC). Judicial tribunals are set up to deal only with serious allegations that could result in a judge’s impeachment.

The only other judge to face a judicial conduct tribunal under the amended JSC Act is Judge Nkola Motata, who is alleged to have made a racist remark to the Johannesburg homeowner into whose boundary wall he crashed in 2007 while driving under the influence of liquor.

The judicial conduct committee also recommended the dismissal of a separate complaint lodged against Judge Hlophe by the legal lobby group Freedom Under Law.

This was because it would expose Judge Hlophe to penalties that did not exist at the time that the complaint arose. The decision whether to establish a tribunal to investigate the complaint against Judge Hlophe rests with the JSC.

Commission spokesman Dumisa Ntsebeza, SC, said the JSC would apply its mind in reaching its decision, rather than just “rubber-stamping” the judicial conduct committee’s recommendation.

“I don’t see it as improper for the JSC to find they are not satisfied with the [committee’s conclusion],” he said.

Ntsebeza said the commission also needed to take into account a Supreme Court of Appeal ruling last year. This judgment was an important factor in the committee’s finding too.

The appeal court had made “clear pronouncements” that the JSC had to “make a determination whether the judge president was guilty of gross misconduct”.

Its ruling stemmed from a court action by Freedom Under Law challenging a decision by a JSC committee in 2009 that the evidence against Judge Hlophe did not justify a finding that he was guilty of misconduct.

The allegations date from 2008, when the then-justices of the Constitutional Court accused Judge Hlophe of trying to influence the outcome of cases before them. The cases were linked to the corruption charges against Jacob Zuma, who was not yet president of the country.

Freedom Under Law’s case ended up at the SCA, along with a separate court action by Western Cape Premier Helen Zille that also related to the Judge Hlophe saga.

Judge Hlophe then applied to the Concourt for leave to appeal against the two rulings, but his applications were dismissed earlier this year. As a result, the misconduct allegations are now being considered afresh.

Constitutional law expert Professor Pierre de Vos said: “I cannot see that the JSC will not appoint a tribunal to investigate.”

Ntsebeza said the matter would come before the JSC, but that its next sitting was scheduled for next month.

The only way the JSC would meet earlier to decide on the matter was if the chairman called a special meeting - something Ntsebeza did not think was likely since the matter had been going on for years and was therefore not urgent.

The Freedom Under Law complaint related to utterances by Judge Hlophe that the organisation considered to be insulting to the then-chief justice, his deputy and other members of the country’s highest court.

The organisation’s chairman, Justice Johann Kriegler, noted the committee’s decision that, for “technical reasons”, its complaint could not proceed.

“We respectfully welcome the view of the… committee that the complaint by the justices of the Constitutional Court… may constitute gross misconduct warranting impeachment,” he said.

“We trust that the Judicial Service Commission will now cause the disciplinary inquiry to proceed with due diligence and expedition.”

Paul Hoffman, SC, of the Institute for Accountability in Southern Africa, said the committee’s finding was “the best thing to come out of the JSC in a long time”.

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Cape Times