The members of the Judicial Service Commission’s (JSC) complaints committee who will decide Judge John Hlophe’s fate have come under intense pressure, with his legal team applying for the recusal of those seen as unsympathetic to him.
The commission was split last year over whether to refer a complaint — about Hlophe’s moonlighting for the financial services firm Oasis — to a full impeachment hearing. It narrowly decided not to. Its members are:
Transvaal Judge President Bernard Ngoepe
Ngoepe was elected to the JSC by judges president from across the country to represent their interests.
The hearings will not be his first effort to tip-toe through the minefield surrounding Jacob Zuma. Ngoepe granted the initial warrants authorising the National Prosecuting Authority to conduct search-and-seizure raids on members of Zuma’s legal team. It is the Constitutional Court case concerning the validity of those warrants that Hlophe allegedly tried to influence.
Ngoepe’s other highly publicised brush with the Zuma saga took place in 2006 when he recused himself from the ANC president’s rape trial, citing a family connection.
Ngoepe is said to have voted against tougher action against Hlophe during the Oasis controversy.
Justice and Constitutional Development Minister Brigitte Mabandla
Mabandla sits on the committee in her capacity as Justice Minister. She survived the ANC’s Polokwane conference and is a member of the party’s national executive committee.
She briefly attended last Saturday’s meeting of the committee despite the fact that she is an active politician and could be required to take part in an impeachment vote in Parliament if the JSC does recommend Hlophe’s removal.
Her spokesperson, Zolile Nqayi, said it was up to Mabandla to decide whether to take part in the hearing. She would not participate in both the parliamentary process and the JSC vote, he said. JSC spokesperson advocate Marumo Moerane has confirmed to the Mail & Guardian that Mabandla is an ex-officio member of the complaints committee with full voting powers.
Justice Craig Howie
The outgoing Judge President of the Supreme Court of Appeals, Howie sits on the JSC by virtue of being the second-most-senior judge in the country after Chief Justice Pius Langa.
Langa, who normally chairs the JSC, had to recuse himself as he is a complainant.
Howie is one of five JSC members that Hlophe’s counsel Dumisa Ntsebeza requested should not sit on the Hlophe complaint, apparently on the grounds that Howie had voted for action to be taken against Hlophe over the Oasis controversy. Howie is due to retire from the Bench later this year.
Advocate Milton Seligson SC
Advocate Seligson is a former chair of both the Cape Bar and the General Council of the Bar. He is one of two members on the JSC who represent the advocate’s profession and he has so far missed deliberations on the complaint against Hlophe as he is overseas on sabbatical and is due to return only this week.
He supported sanctions against Hlophe in the Oasis saga. He is the second of the JSC members that Hlophe’s legal team wants to remove from the panel.
Advocate Marumo Moerane SC
Moerane also represents practising advocates and has taken over from Seligson as JSC spokesperson.
A cousin of President Thabo Mbeki, he was thrust into the limelight when he represented Bulelani Ngcuka at the Hefer commission. Moerane will also be remembered for arguing unsuccessfully on behalf of Minister of Health Manto Tshabalala-Msimang in the Constitutional Court case over the provision of nevirapine to pregnant mothers.
It is understood he did not support the impeachment of Hlophe in the Oasis case.
Julian von Klemperer
Von Klemperer is one of two representatives of attorneys on the JSC. Previously the co-chair of the Law Society of South Africa, he will be remembered for his 2006 grilling of drunk-driving accused Judge Nkola Motata about the time he took to deliver his judgements. Motata was bidding for an SCA berth at the time.
He is believed to be one of those Hlophe’s team wants to exclude.
Edward Mvuseni Ngubane
The second attorney’s representative, Ngubane, is a former president of Hlophe’s most consistent and vociferous defender, the Black Lawyers’ Association (BLA).
Ngubane co-chaired the Law Society of South Africa and is a director of Durban-based law firm Ngubane and Partners Incorporated. He opposed the move to have a formal impeachment hearing in the Oasis affair.
Professor Johann Neethling
A professor of private law and former dean of the law faculty at the University of South Africa, Neethling represents legal academics on the JSC. He is also an advocate and served on the Unisa council.
Advocate George Bizos SC
A presidential appointee, Bizos is a celebrated human rights lawyer who represented the Rivonia treason trialists and, more recently, successfully defended Morgan Tsvangirai when he was charged with treason by Robert Mugabe’s government. He remains highly influential in legal and political circles.
He, too, is among those Hlophe’s legal team wants excused from proceedings on the grounds that he backed more robust action in the Oasis complaint.
Advocate Kgomotso Moroka SC
Moroka was appointed by Thabo Mbeki and is a senior member of the influential Duma Nokwe group, which comprises some of the leading black advocates in the country. With JSC member advocate Seth Nthai, she is leading the government’s defence team at the Ginwala inquiry into the fitness of former National Prosecuting Authority boss Vusi Pikoli to hold office.
At the last JSC hearing on Hlophe she appears to have bucked the trend of support for Hlophe along racial lines and is one of those Hlophe’s legal team wants excluded.
A veteran unionist, Ernstzen is an Mbeki appointee. He was the first general secretary of the South African Municipal Workers’ Union and was intimately involved in the talks that led to the formation of the Congress of South African Trade Unions. Ernstzen also serves as deputy chairperson of the Public Service Commission.
Advocate Seth Nthai SC
The last of the presidential nominees, Nthai also belongs to the Duma Nokwe group. A snazzy dresser, Nthai was in the limelight last week at the Ginwala commission, grilling Pikoli on behalf of the state about his lack of legal experience. Described as “quiet” and having a “low profile”, Nthai backed Hlophe in the Oasis hearing.