Courts will be big news in 2016

Winding down: The Judicial Service Commission may finally call a stay on the Judge John Hlophe affair. (David Harrison)

Winding down: The Judicial Service Commission may finally call a stay on the Judge John Hlophe affair. (David Harrison)

A look at the court rolls reveals that several key cases are likely to be heard this term now that the high courts have resumed their work after the December recess.

Unquestionably the most important case, arguably of the year, takes place shortly in the Pretoria high court when the Democratic Alliance finally is able to challenge the decision of the National Prosecution Authority (NPA) to drop the prosecution of President Jacob Zuma on corruption charges.

This case follows a decision of the Supreme Court of Appeal, which found not only that a decision of the NPA to refuse to prosecute Richard Mdluli was reviewable by the court but also that the NPA could be ordered to make a fresh decision as to whether to prosecute.

The Mdluli judgment is clear authority for an argument that the refusal to prosecute Zuma on a string of fraud charges was unlawful, albeit that the court will have to be satisfied that the factual matrix in the Zuma case can be applied to the law as laid out in the Mdluli case.

Whatever the result, this case will eventually have to be determined by the Constitutional Court. But a decision adverse to the president will bring him one step closer to the criminal dock and, accordingly, will hold significant implications for politics in this country, particularly as 2016 is an election year.

In short, the stakes will be very high when this case is argued. It will place immense pressure on the courts and possibly on the NPA, which may be ordered to decide afresh whether the president should face the criminal law.

A second long-running saga will also be heard this term. The appeal by two justices of the Constitutional Court, Bess Nkabinde and Chris Jafta, against a unanimous decision of a full bench of the high court will finally be heard by the appeal court.

The high court decided there was no merit in their argument that the Judicial Service Commission (JSC) had followed the wrong legal path in holding a disciplinary hearing on the alleged conduct of Western Cape Judge President John Hlophe.

This case follows a complaint lodged by justices of the Constitutional Court that Hlophe sought to influence the Constitutional Court in deciding a case involving the president.

The complaint against Hlophe was made on May 30 2008, more than seven and a half years ago, itself a telling indictment on the ability of the JSC to settle such an important complaint, made as it was by justices of the highest court of the land, including the then chief justice Pius Langa and Deputy Chief Justice Dikgang Moseneke, in a manner that was fair to both Hlophe and the complainants.

To be accurate, the latest delay was created by Nkabinde and Jafta, whose approach in this matter has never been satisfactorily explained. After all, had they not adopted the litigious route, the tribunal appointed by the JSC under the chairmanship of retired Judge Joop Labuschagne would have long completed its work.

Labuschagne’s ruling, against which the two justices proceeded to the appeal court, was made in October 2013.

Once the court rules on this appeal, it is likely to be the end of the litigation: it is difficult to see how the Constitutional Court can be asked to rule on a matter that concerns two of its own members.

Three scenarios are possible: the appeal court upholds the appeal, in which case the Hlophe complaint is likely to be terminated; the court dismisses the appeal, in which case it reverts to Labuschagne and his colleagues on the tribunal; or the sheer length of the proceedings motivates the JSC to call a final stay, thereby ending this disturbingly long-running brouhaha.

Probably the most keenly awaited decision of the Constitutional Court this term will be its pronouncement about whether it will hear an appeal by Oscar Pistorius. In short, will the court consider whether there is merit in the argument that the appeal court went beyond the determination of the legal question of whether the judge in Pistorius’s murder trial erred in law and intruded into the factual determination of the case, even if it applied established facts to the correct legal position?

In addition, by the end of the first court term, South Africa will at least know who the JSC has nominated to assume the seat on the Constitutional Court vacated last month by Justice Johann van der Westhuizen, who retired.

Of course, the president will make the ultimate decision, which may well influence the direction of the court over the foreseeable period. Van der Westhuizen generally sided with Moseneke and justices Edwin Cameron, Johan Froneman and Sisi Khampepe.

The new appointment could well swing the balance of the court, thereby changing its jurisprudential focus in key areas.

The next few months hold significant implications for politics in general and the state of the judiciary in particular.

 
Serjeant at the Bar

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