Lawyers for embattled Western Cape Judge President John Hlophe will argue not only that the Judicial Service Commission (JSC) is biased against their client but that its inquiry is illegally constituted. Seeking an interdict against the inquiry, Hlophe’s team will use an opinion the JSC itself commissioned on who must be present at its hearings.
In a further development, the JSC has now admitted that it discussed the possibility that its membership might change under a Zuma administration and considered problems this could cause for its ongoing inquiry into Hlophe.
But, confirming these discussions, JSC spokesperson Marumo Moerane told the Mail & Guardian that the JSC’s deliberation on these two issues did not ”influence the majority” in arriving at its decision not to grant Hlophe a postponement. ”They had nothing to do with the reasoning of the majority,” he said.
On Wednesday Hlophe’s lawyers sent a letter to the JSC declining to participate in ”unlawful proceedings” and confirmed that they would be bringing an urgent court application to interdict hearings into their client.
The Weekender newspaper reported last weekend that JSC commissioner Mvuseni Ngubane argued within the JSC that Hlophe should have been granted a postponement. Ngubane also said his fellow commissioners pondered the possibility of a Zuma administration’s ”shenanigans” — changing the composition of the JSC — during confidential deliberations in the course of last month’s hearings in Sandton.
”The apprehension about the new administration is astounding and in my view should not even have entered the fray,” Ngubane wrote in a document given to the JSC and which the M&G has seen. ”I am of the view that the issue of the replacement of the commissioners was irrelevant and should not have been considered by the commission,” he wrote.
Ngubane said that Hlophe’s right to be heard overrode the majority’s view that it was in the interest of justice that the hearing continue without Hlophe and that Hlophe should have been granted a postponement because he had produced a bona fide medical certificate.
Hlophe’s confidant and University of Cape Town administrator Paul Ngobeni told the M&G that Hlophe’s team will not only argue bias but that the hearings had not been properly constituted because of the exclusion of Justice Minister Enver Surty.
Surty recused himself on the grounds that he facilitated settlement talks between Hlophe and the 13 Constitutional Court judges who laid a complaint against Hlophe last year.
Hlophe’s team will use a legal opinion the JSC commissioned last June from Cape-based senior counsel Owen Rogers on how JSC hearings should be constituted. The M&G has seen Rogers’s written opinion, which was originally commissioned to explain the legal implications of both Chief Justice Pius Langa’s and Deputy Chief Justice Dikgang Moseneke’s inability to chair the hearing into Hlophe.
On that point, Rogers wrote that it would be ”patently absurd if the JSC were precluded from dealing with a matter simply because neither the Chief Justice nor his Deputy were able to participate”.
But regarding the participation of other JSC members, Rogers referred to the ”prima facie position that the JSC can perform its functions only if all the current incumbents participate … Accordingly, while I think it would be highly desirable for the legislation to be amended to permit the JSC to function by reduced quorum, I must conclude that this is currently not permissible.”