The Constitutional Court must drop its complaint against him or risk creating a constitutional crisis, Cape Judge President John Hlophe has told the Johannesburg High Court.
Alternatively, all 11 judges of the country’s highest court must recuse themselves and make way for a ”differently constituted” court to deal with the issues surrounding the complaint, Hlophe suggests.
The two potential outcomes are canvassed in Hlophe’s application for an interdict preventing the Judicial Service Commission (JSC) from hearing evidence against him in its investigation of whether he sought improperly to influence two constitutional court judges to favour ANC president Jacob Zuma.
The JSC cannot be asked to decide whether to stop the hearings, Hlophe argues in his founding affidavit, because it ”is not a judicial institution and cannot make judicial findings of the nature that I am asking for in this application.
”The powers of the JSC are restricted to findings of facts and recommendations to the appropriate authority … An order or decision issued by a court binds all persons to whom and organs of state to which it applies,” the affidavit says.
Hlophe is effectively asking a lower court to make a finding about the conduct of a higher court, something he concedes may be difficult.
”If this honorable court should consider that it would be undesirable of it to inquire into the constitutional conduct of judges of the Constitutional Court acting as a court … I would ask that a referral be made to the Constitutional Court, differently constituted to consider its conduct in light of the submissions that I make,” he says.
”A position in which the judges of the Constitutional Court reconsider their decision to lodge a complaint against me as a court would be unprecedented but would be justifiable in the public interest.
”Such a position would provide the court with an opportunity to review its own decisions in light of the legal submissions that I make without creating a constitutional crisis of the nature that would result if another court would make adverse findings against it.”
Hlophe goes on to argue, as he has in his submission to the JSC, that the manner in which the Constitutional Court judges handled their complaint violated his rights to due process, dignity and privacy, and that it improperly lodged the complaint ”as a court” rather than individuals. If the complaint was improper, the JSC cannot hear it.
”Whatever the correct position, this is an issue which only a court of law can decide and not the JSC,” reads the affidavit.
Nor, he argues, can the Constitutional Court in its current form. ”It is plain, with respect, that the current judges of the Constitutional Court cannot be expected to determine the issues I raise in this application without partiality and prejudice as required of them by the Constitution.”
If the high court is unwilling to rule on the conduct of a higher court, Hlophe seems to suggest, no court can hear his application unless the ”unprecedented” happens and all eleven judges recuse themselves.
”I would have no court to hear my application unless it is constitutionally and legislatively possible,” he says.
Asked to comment, constitutional law expert Pierre de Vos said the ”reconstitution” of the Constitutional Court in this way is not possible.
”The court has previously found that there cannot be more than three acting judges, so there is just no way that can happen,” he said.
The Mail & Guardian, together with the Sunday Times and Independent Newspapers, has asked the JSC to hold the hearing on the Hlophe matter in public. Idasa and the Centre for Constitutional Rights have separately applied for an open hearing