By Natasha Joseph
Cape Judge President John Hlophe is not allowed to return to work because the conditions under which he was granted special leave last year have not been met, Justice Minister Enver Surty said on Sunday.
Hlophe now has to explain to Surty why he should be allowed to resume work after requesting special leave in June last year pending the outcome of an investigation into allegations that he tried to improperly influence two Constitutional Court judges.
Special leave was granted by Surty's predecessor, Brigitte Mabandla.
Last week Hlophe returned to work at the Cape High Court, but was told by Surty to remain on leave - a move which enraged the former.
Hlophe's lawyers wrote to Surty on Thursday, accusing him of "unlawful" behaviour and warning that his decision to keep Hlophe away from work could see South Africa plunged into a "constitutional crisis".
"The granting of such (special) leave does not entitle the Honourable Minister to convert a special leave into a device to indefinitely sideline a judge from lawfully executing his judicial duties in terms of the Constitution and his oath of office," Hlophe's attorneys wrote in a letter, extracts of which were published in the Sunday Times yesterday.
"We are concerned that you have acted in a manner consistent with an overpowering executive that can wield control over the courts and judges through special leave.
"Simply put, with respect, you have no power to effect suspension or 'temporary impeachment' of any judge under our laws and under any guise or pretence."
Surty's spokesperson, Zolile Nqayi, said Hlophe had, midway through last year, asked Mabandla to grant him special leave while the Constitutional Court judges' complaint against him was being investigated and finalised.
But the Judicial Service Commission (JSC) has put its investigation into the complaint on hold pending the outcome of a legal battle between Hlophe and the Constitutional Court judges.
"The conditions of special leave have not been met," Nqayi said. "(Hlophe) can't return (to work) on his own terms."
In September last year the Johannesburg high
court found that the constitutional court's judges had violated Hlophe's constitutional rights when they released a media statement about their complaint of gross misconduct against him.
Delivering the majority judgment last year, Judge Phineas Mojapelo said Hlophe's rights had been violated by the initial publication of the complaint on May 30. The judges substantiated their complaint to the JSC on June 17.
The Constitutional Court judges were granted leave to appeal the ruling. The High Court judgment is also being used by Hlophe to claim R10 million in damages from the Constitutional Court judges for damaging his dignity and reputation.
The JSC has said it will not proceed with an investigation into the complaint against Hlophe until all legal processes were complete.
University of Cape Town's deputy registrar for legal affairs, Paul Ngobeni, "a supporter of Hlophe", said the Cape Judge President had "an absolute right to return to work".
"A minister can't convert voluntary leave into a de facto suspension," he said. "Surty has misinterpreted his powers. "A judge's right to return to work cannot be affected by the minister. When a person takes voluntary leave, asks for it, if they decide they want to return, you can't tell them to stay on leave."
He said the JSC had "dropped the ball" by not pursuing its investigation into the Constitutional Court judges' complaint against Hlophe, saying nothing in the Johannesburg High Court's ruling last year prevented the JSC process from running concurrently with legal proceedings.
Ngobeni said there were "clear political motivations" behind Surty's request for Hlophe to stay away from work. "(Hlophe) is being kept out by the minister... he's being sidelined."
Nqayi said Surty had offered Hlophe the chance to "make a representation" in which he should explain why he should return to work despite the conditions of his special leave being contravened.
Neither Hlophe nor his attorney Lister Nuku responded to requests for comment on Sunday.