Western Cape Judge President John Hlophe. Picture: Werner Beukes/SAPA
Western Cape Judge President John Hlophe. Picture: Werner Beukes/SAPA

Gauteng judges are not Judge President Hlophe's 'minions' - court hears

By Mayibongwe Maqhina Time of article published Sep 23, 2021

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WESTERN Cape Judge President John Hlophe’s bid to have his colleagues in the Gauteng division not hear the review application for the Judicial Services Commission (JSC) decision was dismissed yesterday.

Judge Hlophe had in his urgent application named Gauteng Judge President Dunstan Mlambo as one of the commissioners that upheld the gross misconduct finding against him.

The first part of his application sought to stop President Cyril Ramaphosa from suspending him, and prevent Parliament from instituting the impeachment process.

Hlophe also wants, in his second application, to review and set aside the decision of the JSC on the grounds that the judicial body was not properly constituted when it took the decision.

During yesterday’s court proceedings, Advocate Tembeka Ngcukaitobi asked whether Hlophe’s attorney, Advocate Lihle Sidaki, wanted the matter to be heard by judges from a different division.

The presiding judge, Roland Sutherland noted the issue was raised in a letter but not in the affidavit.

“Are you persisting in that view,” Judge Sutherland asked.

Sidaki referred to another matter heard in the Western Cape high Court, where an Eastern Cape judge presided because it concerned Hlophe’s attorney, Barnabas Xulu.

“There, certainly, is not a submission that there is not a judge in this division that is qualified to hear this matter.

“However, I would like to direct this court to the precedent that has been set before,” he said.

First asking how that would assist the court, Judge Sutherland quoted from the letter that raised questions of the Gauteng court’s impartiality.

“Do you think that all members of the Gauteng division constitute a swarm of minions who are enthralled to the Judge President and who go about sucking up to him to each and everything he has a whim about,” he asked.

Sidaki said: “I can only say that the content of that letter is unfortunate.”

This prompted the presiding judge to say Sidaki’s response was “perhaps the relevant remark” to be made about the request.

However, he said there was no merit on any grounds for inviting a member of another division to come hear the matter.

“It is the responsibility of this division to hear it. I will case-manage this matter until the hearing, and a judge of this division will hear the matter.”

Judge Sutherland said he hoped that that would be the last they heard about it.

“Of course, if you have any reasons to seek the recusal of the judge who is assigned to hear the matter, that is a different issue, and that we will deal with in due course,” he said.

Earlier, Judge Hlophe abandoned his application to interdict both his suspension from office and the institution of the impeachment process against him.

Judge Sutherland noted Judge Hlophe has abandoned the relief in Part A of his application.

He had earlier told Sidaki that there was no case.

“From these papers, it is demonstrable that the application against the president was premature. There is no urgency in the application against the Speaker.”

Judge Sutherland also said Part B of the application would be removed from the roll to allow Judge Hlophe, JSC and FUL (Freedom Under Law) representatives to agree on a timetable for exchange of affidavits and heads of arguments.

The judge ordered that once an agreement has been reached, his office should be notified so that “I shall fix the earliest convenient date and allocate a judge to hear the matter”.

The application by FUL to join the Part B of the application was postponed indefinitely, and would be addressed if it was either re-enrolled or argued at the same time as the main application.

No costs for Wednesday's application were granted, but the costs incurred by FUL for the proceedings were reserved for determination at a later time.

Meanwhile, Speaker Nosiviwe Mapisa-Nqakula has welcomed the abandonment and withdrawal of the urgent application to interdict the National Assembly from going ahead with the impeachment process.

“The Speaker had asserted that she will abide by the ruling of the Gauteng Division of the High Court on the matter,” spokesperson Moloto Mothapo said.

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Political Bureau

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