/ 7 April 2009

JSC hearing hits snags, calls chief justice

A hearing into judicial misconduct had several false starts on Tuesday as the unprecedented case pitting the Cape Judge President against the judges of the Constitutional Court hit more hurdles.

But by 3.50pm, Chief Justice Pius Langa was finally called as the first witness.

”Mr chairman, firstly I did not have a desire to have Judge President Hlophe impeached,” Langa told the Judicial Service Commission (JSC).

”This was a painful matter to me. I am aware that in the history of the judiciary in South Africa there’s probably not an impeachment — I have no ulterior motives against the Judge President,” he said at the start of his testimony.

Tuesday’s proceedings were delayed with several adjournments.

The morning started with a reference to a confidential affidavit of which advocate Gilbert Marcus, who is representing the judges of the Constitutional Court, requested a copy.

He said Vuyani Ngalwana, Hlophe’s lawyer, had made reference to this affidavit, apparently about a settlement proposal in the matter. But Ngalwana said he did not intend to present the affidavit at the hearing.

The JSC immediately ended the conversation, with committee chair Judge Lex Mpati saying: ”We wouldn’t like to hear any details of any settlement proposals, the commission doesn’t want to be compromised.”

First of many snags
Last Wednesday, hearings were postponed because Hlophe had suffered from a ”mischievous bout of flu”.

Nearly a week later, he still could not attend, because he was ”in a particularly mischievous physical health”, Ngalwana said.

He requested the third postponement in the past week, in a hearing that was initially set down to be heard last year but was delayed by several court applications.

At the heart of the matter is an allegation by the judges of the Constitutional Court that Hlophe tried to interfere in a judgement involving African National Congress leader Jacob Zuma, who was at that stage facing fraud and corruption charges. They have since been dropped.

The JSC needs to deal with two complaints — the first is whether Hlophe tried to influence two judges — Bess Nkabinde and Chris Jafta — in the Constitutional Court.

The second complaint is from Hlophe, who says the Constitutional Court judges had infringed on his rights by making public the allegation against him without giving him an opportunity to state his side of the story.

Hlophe has in the past argued that he could not trust the JSC because he believes its commissioners are biased, and that argument featured again briefly on Tuesday.

”The Judge President still believes that this JSC, as currently constituted, is biased against him,” Ngalwana said in the morning, after arriving an hour late for the hearing.

This was in response to Marcus’s request for clarity on whether Hlophe still regarded the JSC as biased, an element in the case which Marcus described as the ”elephant in the room”.

Ngalwana said, for the time being, there would be no attempt to get an interdict to stop the hearing, based on the argument of bias. He said his purpose on Tuesday was not to argue the matter of bias, but to apply for a postponement due to Hlophe’s ill health.

”We tried under difficult circumstances to consult with the Judge President yesterday afternoon. He claimed he was in no position to consult,” said Ngalwana.

Hlophe was not ready to testify or ”participate meaningfully” in the hearing because his symptoms had not ”completely abated”.

”The Judge President is still unwell and so he is unable to continue with this hearing. Our instructions are to seek a postponement … He may well have another examination today to determine whether the symptoms have completely abated,” said Ngalwana.

Advocate George Bizos asked whether Hlophe could be consulted by phone, but Ngalwana said that was not an option. ”The man is indisposed. He can’t pick up the phone because he has the flu?” asked Bizos. ”Mr Bizos is obviously ridiculing the condition of the Judge President,” replied Ngalwana, who then said Hlophe’s condition was ”far more serious” than flu. This would have been the third postponement in a week.

Last Wednesday, the hearings were postponed to Saturday because Hlophe had the flu. On Saturday, he had appointed a new senior counsel, advocate Brian Pincus, who argued that he needed at least 10 days to go through the paper work.

The commission ruled that the hearing be postponed until Tuesday. Then it emerged on Tuesday that Pincus was no longer representing Hlophe.

”The Judge President has now also lost confidence in the replacement senior counsel, Mr Pincus,” said Ngalwana. After long deliberations following Tuesday’s request for a postponement, the JSC dismissed the application, causing Ngalwana to withdraw from the matter.

”He [Hlophe] won’t be able to here tomorrow, he won’t be able to be here the day after … it would not be in his best interests for us to represent him in his absence. The best way we can represent our client is by withdrawing from the matter,” said Ngalwana.

Bizos then asked if the commission should not consider the number of occasions on which Hlophe’s lawyers have delayed the matter, hinting that this was a strategy by Hlophe to prevent the hearing from taking place. ”Before this question is answered, we would excuse ourselves,” said Ngalwana. ”Thank you, chair, at last we got to be excused.”

Mpati once again adjourned the hearing to allow the JSC to decide if it should continue. The JSC returned, saying the hearing would continue, but that its confidential conversations had been recorded illegally. ”Whilst we were having a private session of the commission, our discussions, it seems, have been taped.

The tape recorder, it appears, was linked to a laptop computer. ”We don’t know how far our discussion, which was supposed to have been private, had gone. I think we need to mention too that those discussions were privileged and confidential,” said Mpati. — Sapa