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

Cape Town - The DA has welcomed a Judicial Conduct Committee (JCC) recommendation that a tribunal investigate a complaint by Constitutional Court judges against Western Cape Judge President John Hlophe.

“We trust that the (Judicial Service Commission) will accept the recommendation and that the matter will now proceed to finalisation,” Democratic Alliance MP Dene Smuts said on Thursday.

She said the party pointed out in August 2009 that the JSC alone had the duty to determine whether a judge was guilty of gross misconduct and if so, to recommend impeachment to Parliament.

The JCC recommended that a tribunal be appointed to investigate the complaint.

It said: “The committee considered that this complaint, if established, will prima facie indicate gross misconduct, which may lead to impeachment.”

It took into account the pronouncements of the Supreme Court of Appeal (SCA) that the JSC must decide whether Hlophe was guilty of gross misconduct.

In 2008, judges of the Constitutional Court complained that Hlophe had visited some judges at the court in Johannesburg and had inappropriately alluded to a judgment relating to President Jacob Zuma and arms company Thint before corruption charges against them were dropped.

They regarded this as an improper attempt to influence the case.

Hlophe, affronted that the judges had also sent a copy of the complaint to the media before he had had time to deal with it, laid a counter complaint.

A lengthy stop-start parallel process of JSC hearings and court challenges began.

The matter was ultimately heard in the Supreme Court of Appeal, with rulings in favour of Western Cape premier Helen Zille and lobby group Freedom Under Law (FUL). The SCA ruled that the JSC must reconsider both complaints.

Zille had complained that as premier she should have been included in the JSC's preliminary investigation into the matter.

FUL complained about utterances allegedly made by Hlophe.

The issue was also tested the Constitutional Court when Hlophe approached the judges for leave to appeal. They turned down the application and the JSC ruling stood.

Oral submissions were then made on August 24.

A second decision released on Thursday by the conduct committee related to FUL.

The committee said it accepted that some of the utterances made by Hlophe after the complaint was laid by the judges “if established” indicated gross misconduct on Hlophe's part.

At the time, the comments were reportedly that the judges were “dishonest, untruthful, malicious, vindictive and driven by a political motive”.

But the committee considered the circumstances under which the utterances were made and came to the conclusion that in view of such circumstances it was not likely that such misconduct would justify impeachment.

The proper course would be an inquiry in terms of the Judicial Service Act.

“This would, however, expose the judge to complaints and penalties that were not there when the complaint arose.

“This would violate the established rule of law against retrospective application of legislation. This complaint could therefore not be proceeded with and was accordingly dismissed,” the committee said. - Sapa