Hlophe threatens court interdict to stop JSC hearing

Cape Judge President John Hlophe made various demands of the Judicial Service Commission (JSC) when it reconvened on Wednesday.

He threatened a court interdict to stop the hearing against him if they were not met.

Hlophe demanded written reasons for the JSC’s rejection of his bid to postpone a hearing into his conduct.

Earlier Hlophe’s lawyer Vuyani Ngalwana presented a sick note saying Hlophe had “severe influenza” and could not attend, and asked for a postponement.

Hlophe was due to answer a complaint that he had allegedly interfered in the judgement consideration process by Constitutional Court judges relating to an application by African National Congress president Jacob Zuma.

After an adjournment for Ngalwana to consult him on whether the hearing could go ahead without him, his lawyer said Hlophe had instructed him to demand the records of a meeting on Friday March 28 at which the JSC denied his allegations that they were biased against him.

Hlophe wrote to the commission on March 27 claiming that the procedure intended by the JSC at Wednesday’s hearing was “most irregular”.

“Unless the irregularities are rectified, the process would be compromised, the consequences which are that our client would not participate in them,” the letter written by Hlophe’s attorneys, Xulu Liversage Incorporated, said.

The letter raised 12 points of concern against the JSC’s intended procedure.

Among these was the concern that the Constitutional Court judges were not entitled make public a complaint that had not been formalised with the JSC yet.

He also said the JSC was biased in its procedures against Hlophe and favoured the Constitutional Court judges.

Further, he was concerned that the JSC set the dates for Wednesday’s hearing “as if the outcome of the appeal by the judges of the Constitutional Court to the SCA [Supreme Court of Appeal] was already known to the JSC”.

The JSC ruled against Hlophe on Tuesday when it found that there was no law preventing the Constitutional Court judges from making their complaint against him public. This was Hlophe’s main grievance.

Last year the judges released a copy of their complaint about Hlophe’s alleged conduct to the media.

Hlophe’s lawyer’s letter also said the JSC had chosen Hlophe as a witness without consulting him, and asked for reasons why this has been done.

The letter further stated that Hlophe would suffer irreparable harm should the JSC proceed with its inquiry, as further appeals were likely.

He has already indicated that he intends taking the SCA decision to the Constitutional Court, which a legal expert has said is fraught with difficulties.

Hlophe’s lawyer said that in addition to wanting written reasons and a record of the proceedings at which the JSC decided to deny the allegations, he could also apply for a review of the decision.

He also wanted written reasons for Justice Minister Enver Surty’s recusal from the hearing.

“I think the thinking is that the minister himself is biased,” said Ngalwana.

But Mbuyiseli Madlanga, representing Constitutional Court judges Bess Nkabinde and Chris Jafta, who Hlophe is alleged to have approached in the Zuma case, was exasperated.

“The mind just boggles. We do not understand this at all,” he said, adding that his clients were ready to proceed.

“Without suggesting impropriety or anything, but this is beginning to look like not wanting that the matter go ahead, unless ...
there is a logical explanation,” he said.

The hearing was briefly interrupted by a power cut, but the judges and lawyers pressed ahead, with their voices cutting through the dark of the windowless room.

JSC member Marumo Moerane said they could probably produce written reasons quickly, but a record of proceedings would take longer.

The commission then once again went into a private session to decide whether to postpone until Saturday.

It is believed that the Constitutional Court justices are waiting in a nearby holding room at the venue, ready to be called.—Sapa

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