Hlophe wants to be judged by 'fair people'

Time of article published May 18, 2009

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By Angela Quintal

Western Cape Judge President John Hlophe appears ready to settle his dispute with the country's top court in the interests of justice and restoring public confidence in the judiciary.

Not only has the judge president mooted arbitration in his papers before the Johannesburg High Court - which will hear his application for an interdict against the Judicial Service Commission today - but the Daily News understands that a draft settlement proposal has been resuscitated.

In his replying affidavit, Judge Hlophe states that he is not asking for a permanent stay of the proceedings "even though I have done nothing wrong in discussing cases with colleagues".

"What I ask is that I be judged by people who are fair and have the interests of justice at heart. The majority of the current JSC clearly does not have that interest."

Hlophe said a possible avenue was to appoint a panel of senior judges by agreement between the parties to consider the case by way of arbitration.

The difficulty with the current process before the JSC, apart from its bias, was that "the judge gets to be prosecuted for an offence the parameters which are undefined".

Hlophe's attorney, Barnabas Xulu, said at the weekend it would be difficult for South African judges to resolve the matter involving their own, and that independent judges from outside the country should perhaps be identified.

It is understood that one of the proposals which might be formally placed on the table soon is that Justice Minister Jeff Radebe establish a four- member panel of experts "to provide advice and guidance on how the JSC should deal with matters of this nature".

Constitution

This could be done in terms of section 165 (4) of the constitution which provides that organs of state, "through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts".

Part of the deal would be that the Constitutional Court justices and Hlophe would withdraw their respective complaints from the JSC, as well as all litigation before the courts.

A settlement proposal mooted by former Justice Minister Enver Surty was rejected by Hlophe, who was not prepared to accept a financial settlement on condition he left the bench.

Hlophe also states that during the JSC proceedings in April, the offer that he resign for financial reward was repeated to him by his then counsel, Brian Pincus SC, who was approached by court counsel Gilbert Marcus SC.

It is understood that Hlophe still believes any settlement offer should include a private apology from the Concourt justices "for the humiliation he suffered" as a result of their publication of untested allegations, as well as financial compensation.

Meanwhile, Chief Justice Pius Langa on Friday issued directions relating to Hlophe's application to the Concourt for leave to appeal against a decision by the Supreme Court of Appeal.

A nine-member SCA bench overturned in March a Johannesburg High Court judgment which found that the justices of the Concourt had violated Hlophe's constitutional rights.

Justice Langa noted that 10 of the 11 judges of the Concourt were respondents in the matter, including himself.

Hlophe's counsel has been asked to provide written argument by May 29 on several issues, including "on what legal basis an applicant may consent to judges hearing an application only on condition that they grant it, if the applicant otherwise contends that the judges are disqualified from hearing the application".

The counsel must also argue whether it is "legally significant that a bench of nine Supreme Court of Appeal judges has already heard the matter".

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