/ 28 January 2010

JSC says Zille’s court challenge should be dismissed

The Judicial Service Commission wants Western Cape Premier Helen Zille’s court challenge against its controversial hearings on Judge President John Hlophe dismissed.

In an answering affidavit filed this week at the Western Cape High Court — where Hlophe holds office — the JSC said that Zille’s claims against it are not ‘true and correct”.

Zille lodged an urgent application with the court last month. She challenged the ‘validity” of the JSC when it held hearings last year relating to allegations that Hlophe had tried to influence Constitutional Court judges in a case involving Jacob Zuma in May 2008.

Zille holds the Constitution as evidence that she should have ‘acted as a commissioner” during the Hlophe hearings. She argues in papers that the commission failed to notify her of the hearings.

‘I challenge as invalid on constitutional grounds the meetings which the JSC convened and held on 20 to 22 July in Cape Town and on 15 August 2009 in Johannesburg … I do not challenge the merits … of the [JSC’s] decisions,” said Zille in her application.

‘The JSC is not properly and lawfully constituted if the relevant premier or his or her alternate does not participate as a member of the JSC, at least for unacceptable reasons.”

Zille said that the ‘premiers of specific provinces, or their alternatives, are members of the JSC when it considers matters relating to high courts, in their respective provinces by virtue of section 178(1)(k) of the Constitution”.

The commission and Justice Lex Mpati — the acting chairperson during the time of the hearings, and 13 of its current and former judges — are among those challenged in Zille’s court papers.

The JSC however, believes that Zille is barking up the wrong tree. It says in court papers, filed by state attorneys, that Zille makes a ‘generalised and misplaced claim”.

The JSC also suggested Zille seek redress from the Constitutional Court because her ‘challenge relates to the constitutional status, powers and functions of the premier of the Western Cape”.

‘A dispute between the organs of state, such as this present one, may only be determined by the Constitutional Court … therefore ask the [Western Cape High] Court to dismiss this application,” states the JSC’s papers.

The JSC also believes that Zille should only be involved in matters relating to the high court in her province. The Hlophe hearings did not involve the court that falls in her jurisdiction where she ‘exercises executive authority”. She was thus ‘not entitled to be an ad-hoc member of the JSC”.

Hlophe has not yet responded to Zille’s application but his attorney Barnabas Xulu this week told the Mail & Guardian “we will certainly be responding.

“We have been delayed by the state not confirming that it would fund the matter. It’s a legal right to be state-funded in this matter. But we have been told that Hlophe’s case will be funded. We have to protect his rights,” said Xulu.

The Western Cape High Court’s deputy judge president is likely to allocate judges when the matter is scheduled for hearing on February 17. Late last year ANC veteran Kader Asmal and the Freedom Under Law NGO also launched legal action challenging the commission’s dismissal of allegations against Hlophe.