There was neither a factual nor legal basis for a high court finding that Cape Judge President John Hlophe’s rights to dignity, equality and fairness had been violated by the Constitutional Court, the Supreme Court of Appeal (SCA) heard on Monday.
Advocate Gilbert Marcus, defending the Constitutional Court’s judges, said the effect of the high court’s majority decision was that it had taken over the work of the Judicial Services Commission (JSC).
”The JSC is the constitutionally mandated body to deal with investigations into misconduct by judges,” he said.
Nine SCA judges are hearing an appeal by the Constitutional Court judges against a high court ruling favouring Hlophe that was handed down in September last year.
The High Court in Johannesburg found that the release of a media statement by the Constitutional Court judges detailing ”untested allegations of gross misconduct” against Hlophe was unlawful.
The Constitutional Court had complained in June last year that Hlophe had tried to influence two of its judges who were weighing up a ruling on the validity of search warrants against African National Congress (ANC) president Jacob Zuma.
The high court also found the publication of allegations in the media was unreasonable and unjustifiably violated Hlophe’s constitutional right to dignity and his right to comment prior to and in relation to such publication.
Marcus submitted that the findings of the high court and the conclusions reached were now binding on the JSC.
He said the high court’s judgement had now ”improperly impeded” the JSC from performing its functions. It had also ”improperly hindered” the Constitutional Court judges from presenting their case to the commission.
Marcus also submitted that Hlophe’s contention that the judges acted ”as a court” was factually misconceived.
Hlophe’s legal representative, Dumisa Ntsebeza, told the court that judges, even when not sitting in court, were not ”stripped” of their function and obligation to act impartially.
Ntsebeza said the judges should never have issued a media statement stating that they had laid a complaint with the JSC.
”I would submit that precisely of the office they hold, they should not have published the complaint.”
He submitted it was up to the JSC to publish the complaint.
Advocate Thabane Masuku, who took over from Ntsebeza, told the court the judges should also have considered the impact the publication of the complaint would have on the judiciary.
The SCA judges hearing the appeal with the court’s deputy president Louis Harms are: Piet Streicher, Kenneth Mthinyane, Thomas Cloete, Visvanathan Ponnan, Dunston Mlambo, Azar Cachalia, Suretta Snyders and Nonkosi Mhlantla.
The case continues. — Sapa