The ConCourt faced a difficult job when it was asked to consider whether Cape Judge President John Hlophe should get leave to appeal a court ruling.
It could have gone horribly wrong for the Constitutional Court. It faced an enormously delicate and difficult job when it was asked to consider whether Cape Judge President John Hlophe should get leave to appeal against a Supreme Court of Appeal ruling, which would have compelled the Judicial Service Commission to begin its hearings afresh into the complaint by Constitutional Court judges that, in 2008, he tried improperly to influence them in favour of President Jacob Zuma, who was trying to get fraud and corruption charges against him dropped at the time.
Clearly, the justices of the court were in an awkward position. They had a direct interest in the outcome of the case.
At the same time, they could not allow a bench full of acting judges to be appointed to hear just one case. The risk of creating the perception that they had been picked to produce a particular outcome would have been hugely damaging to the independence and credibility of the court.
This daunting array of risks increased further when Chief Justice Mogoeng Mogoeng and acting Justice Raymond Zondo, who is a leading contender for a permanent seat on the court, offered to recuse themselves.
Had either side accepted their offer, the court would have been inquorate (Justices Chris Jafta, Bess Nkabinde and Dikgang Moseneke had already decided to sit out the hearing because they may have to give evidence to the commission) and, therefore, unable to rule.
Even a dissenting judgemnt would have been problematic, dividing the court on the question of whether an attempt had been made to undermine its integrity.
The air is thick with rumour about just how it happened, but in the end an elegant solution was reached—one which balances the interests of justice in this specific case with the longer-term standing and integrity of the Constitutional Court.
The court set out why it could not appoint acting judges for just one case—an important precedent itself—and went on to say that it was denying leave to appeal to preserve the integrity of its own processes.
On balance, the fact that both the high court and the appeal court had already considered the issues meant the parties’ right to justice would not have been unduly diminished.
It is now up to the Judicial Service Commission to pick up the baton. The commission was deeply compromised by its failure to deal substantively with the complaint in the first place.
Its credibility has been further undermined by its crudely political handling of crucial judicial appointments. It has had to advertise the current Constitutional Court vacancy twice without getting enough applicants to meet the minimum requirements for a proper competition.
Too many potential candidates simply believe the process is rigged and the conclusion foregone.
That is an extraordinary indictment of the commission and its processes. The commission can re-establish trust in the legal community and with the public at large by properly investigating the serious allegations made against Hlophe by our most senior judges, cross-examining the parties and acting firmly against any misconduct that might be confirmed in the process.