Hlophe in the hot seat (again)

Western Cape Judge President John Hlophe and 13 judges of the Constitutional Court, including Chief Justice Pius Langa, will face an unprecedented court-style inquiry on April 1 into allegations that Hlophe attempted improperly to influence two judges of South Africa’s highest court.

An advocate close to the process revealed this week that the Judicial Service Commission’s (JSC) 12-member disciplinary committee, which excludes Langa, who normally chairs the body, will hear the matter.

The heavyweight committee, headed by SCA Judge President Lex Mpati, will include Justice Minister Enver Surty, Gauteng Judge President Bernard Ngoepe, advocates Seth Nthai, Kgomotso Moroka, Marumo Moerane, George Bizos and Milton Seligson, attorneys Julian von Klemperer and Mvuseni Ngubane, law professor Johann Neethling and Public Service Commission deputy chair John Ernstzen.

Langa will not be in the chair, as he is one of the judges who lodged the complaint that Hlophe tried to sway Constitutional Court judges Bess Nkabinde and Chris Jafta to favour ANC president Jacob Zuma in the latter’s corruption case. MPs are also excluded because they might have to vote on Hlophe’s impeachment, should it be put to Parliament.

The Mail & Guardian has discovered that the committee is scheduled to meet shortly to consider applications for the hearing to be held in public. The M&G has submitted an application calling for the hearing to be open to the public and the media. 

The scheduling of the JSC hearing appears to signal that behind-the-scenes talks aimed at brokering a settlement between the Constitutional Court and Hlophe have broken down.

The sticking point was apparently Hlophe’s insistence that he remain a judge. He is said to harbour ambitions of an appointment to a Constitutional Court seat under a Zuma government.

This week an unprecedented 9-member full bench of the Supreme Court of Appeals (SCA) heard argument in an appeal by the Constitutional Court judges against a ruling in the Hlophe matter by the South Gauteng High Court last year.

The court found that in publicising their complaint the judges had infringed Hlophe’s rights. The SCA is expected to hand down its judgment before the JSC hearing.

The SCA hearing does not appear to have gone well for Hlophe’s lawyers. At one point senior advocate Dumisa Ntsebeza handed over argument to his junior, Thabani Masuku.

JSC secretary Vuyelwa Masangwana confirmed to the M&G that directions have been given to both parties in relation to the format of the hearing but declined to comment further. She said that “at this stage” the directions were intended only for the feuding parties.

The format, according to a briefing given to the M&G by a source close to the process, will involve all witnesses confirming under oath before the committee chair their statements to the JSC’s disciplinary committee.

The JSC is not to have appointed anyone to lead evidence, but will allow cross-examination to take place under strict conditions. However, “irrelevant cross-examination will not be allowed”, said the source.

The source said that the line of questioning would be based on “12 issues” the JSC has identified as being pertinent to the allegations of wrongdoing on either side. These revolve around issues of “who said what to whom” during Hlophe’s alleged approaches to the two Constitututional Court judges.

The allegation advanced by Hlophe’s defence team of an ulterior motive on the part of Langa and Deputy Chief Justice Dikgang Moseneke would also be tested.

The 11 members of the committee will be allowed to put questions to witnesses through the chair.

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