In an unprecedented case, a full bench of judges heard argument on Tuesday over whether their colleagues in the Constitutional Court had infringed on the rights of the Cape Judge President.
Five Johannesburg High Court judges heard an application by Cape Judge President John Hlophe against the Constitutional Court judges and the Judicial Services Commission (JSC).
”This is an unprecedented case thus far in South Africa,” said Gilbert Marcus, SC, representing the Constitutional Court judges.
Five judges and at least four senior counsel advocates are involved in the case, which attracted several other lawyers and even a judge to the public gallery.
Hlophe, who was not present, is asking the high court to declare that conduct by the Constitutional Court had infringed on his rights to privacy, human dignity, access to the courts, equality and a fair hearing.
The Constitutional Court released a media statement on May 30 containing allegations that Hlophe allegedly tried to improperly influence Judge Bess Nkabinde and Acting Judge Chris Jafta in a case related to corruption charges against ruling party president Jacob Zuma.
Hlophe’s lawyer, Dumisa Ntsebeza, SC, argued that it was unlawful to release the media statement before offering him the opportunity to respond to the allegations.
”This is quite an historic occasion because of the nature of the matter before you,” Ntsebeza said at the start of the hearing.
He told the five judges — Phineas Mojapelo, Antonie Gildenhuys, Seun Moshidi, Rami Mathopo and Dirk Marais — that they needed to decide whether the conduct of the Constitutional Court judges was unconstitutional.
”The applicant’s right to human dignity was irreparably harmed,” said Ntsebeza.
”As a result of these untested claims the applicant has suffered unremitting public ridicule, and public calls from political parties and professional legal organisations, that he vacate his judicial office.”
But the judges frequently interrupted Ntsebeza with questions, including how their ruling on the lawfulness of the Constitutional Court’s action would impact on the JSC’s investigation against Hlophe.
Eventually, Ntsebeza said: ”Every time I open my mouth, I seem to run into problems.”
As his argument drew to a close, Judge Moshidi said he was still trying to understand Ntsebeza’s case.
”I have not made an impression,” Ntsebeza said.
After some more argument by Hlophe’s legal team, Judge Moshidi remarked: ”It looks like we’ve just muddied the waters more.”
Before Marcus started with his arguments, he told the court he took exception to some of the information contained in Ntsebeza’s arguments, saying he had stated some ”facts as if they were not disputed”.
Marcus said it was ”particularly egregious” that Ntsebeza could talk with authority about what had happened at the meeting of Constitutional Court judges where it was decided to issue the media release.
Ntsebeza, in his arguments, said Chief Justice Pius Langa had suppressed the other judges so that they could not ask any questions.
”The applicant does not have any inside information of what occurred. The version of the [Constitutional Court] judges [of what happened] stands unchallenged … Scrupulous care should be taken that the proper and accurate facts be presented,” added Marcus.
He will continue with his argument on Wednesday.
The court has invited advocates Carol Steinberg and Wim Trengove, SC, to appear as friends of the court. They would observe the hearing and make their submissions on Wednesday on the arguments heard in court.
Advocate Vincent Maleka, SC, will also make submissions on behalf of the JSC.
Initially, Hlophe’s legal team said it wanted the high court to stop the JSC hearing against him, but Ntsebeza told the court on Tuesday that was not the case.
Marcus pointed out to the court that Ntsebeza’s oral arguments in court on Tuesday were different from the papers filed in court.
Now Ntsebeza is saying Hlophe merely wants a declaration that the Constitutional Court’s conduct was unlawful, and does not want an order to stop the JSC hearing.
Hlophe has already failed in one attempt to have the JSC commissioners hearing his case recused.
Hlophe claimed the commissioners were biased because they had dealt with another case against him, where he was accused of receiving money from investment group Oasis without asking the justice minister’s permission. – Sapa