The judges of the Constitutional Court, who are involved in a long-running feud with Western Cape Judge President John Hlophe, believe he should face the music and be cross-examined on his actions.
This emerges from a written submission, which the Mail & Guardian has seen, prepared by counsel for the 13 Constitutional Court judges who laid a complaint with the Judicial Service Commission (JSC) last year. They alleged that Hlophe had attempted to ”improperly influence” judges Bess Nkabinde and Chris Jafta in a case involving President Jacob Zuma.
Hlophe then laid a counter-complaint against the 13 judges, saying they had infringed his rights by publicising their allegations before giving him an opportunity to state his case.
The JSC met last Saturday to decide whether it should proceed against Hlophe.
Two days before, the JSC had written to Chief Justice Pius Langa requesting a written submission from lawyers for the 13 judges.
After Saturday’s meeting the JSC announced that it had reached a decision. It is expected to make the decision public on Friday.
The M&G has reliably learned that the JSC will recommend that Hlophe not be impeached.
The JSC’s written request to Langa included a report from the commission’s investigatory subcommittee, headed by Gauteng Judge President Bernard Ngoepe, recommending ”fresh deliberations to the complaint [by the Constitutional Court judges] and the counter-complaint [by Hlophe]”.
Also included were records of all proceedings so far including those of the recent hearing held at the Parktonian Hotel in Johannesburg.
In a response counsel for the Concourt judges argues that, on Hlophe’s own version of events, ”there is a prima facie case of gross misconduct” and ”indeed on 5 July 2008 the JSC so found”.
The allegations against Hlophe ”if proven — would constitute gross misconduct”, the counsel said. ”It would amount to a crime or crimes against the administration of justice, more particularly, attempting to defeat or obstruct the administration of justice or contempt of court”.
Counsel’s submission further states that Hlophe’s alleged actions entailed ”a serious interference with the constitutionally protected independence of the judiciary”.
The alleged actions ”would entail an attempt to induce Nkabinde and Jafta to violate their oaths of office,” reads the submission.
”It is correct that there are certain issues in dispute and the competing versions cannot be resolved without cross-examination.
”Cross-examination is, of course, the accepted method of resolving factual disputes whether on the basis of probabilities or findings of credibility”.
The submission indicates that Hlophe’s defence is that it was not his intention to ”improperly influence” Jafta and Nkabinde. But Hlophe’s intention is ”irrelevant”, the submission argues.
Meanwhile Hlophe’s lawyer has lodged a formal complaint against the M&G with the press ombudsman. This follows the M&G‘s report on August 7 in which Hlophe is quoted as saying that the judges of the Constitutional Court had ”sold out” and that, in reference to Langa, he refused to shake the hand of a ”white man”.