Cape Judge President John Hlophe will take his challenge to the complaint against him to the Constitutional Court, his lawyer confirmed on Wednesday.
”I have now been informed that instructions have been taken to bring an application for leave to appeal to the Constitutional Court, said Vuyani Ngalwana at the stuttering start to the Judicial Service Commission’s (JSC) hearing on the complaint at a Johannesburg hotel.
The Constitutional Court judges last year complained to the commission that Hlophe had allegedly tried to influence judgement on a matter relating to African National Congress president Jacob Zuma.
He took the matter to the High Court in Johannesburg, arguing that the Constitutional Court had infringed his dignity by making public the nature of their complaint and not giving him a chance to be heard.
He also wanted the JSC hearing stopped.
The high court ruled that the Constitutional Court judges had infringed his rights, but that the JSC hearing go ahead as planned.
On Tuesday the Supreme Court of Appeal (SCA) held that the Constitutional Court justices did not act unlawfully when they made a complaint to the JSC against Hlophe without first affording him an opportunity to be heard. They had also not acted unlawfully by issuing the media statement.
”So this is not the end of the matter,” said Ngalwana.
An application to the Constitutional Court would place the judges in a difficult position as they would be adjudicating a matter relating to themselves.
Meanwhile, the start of Wednesday’s hearing was taken up with Ngalwana explaining that Hlophe could not be present due to a ”mischievous bout of influenza”, with a short break for him to produce a doctor’s note.
Hlophe was booked off between March 30 and April 3 by a Khayelitsha doctor, leaving the commission debating whether to press ahead without him.
Ngalwana also had to defend his client’s apparent planned appearance at an engagement in Durban on Thursday night, saying that although he was billed to attend a talk on the Constitution, he had not confirmed.
However, the JSC was concerned that if they allowed the postponement for Hlophe to recover, he would use the time to file an application for an urgent court interdict relating to his claim that certain members of the JSC were biased against him.
The sitting adjourned until 2pm for Ngalwana to take instructions on whether the committee could start the proceedings with the testimony of Chief Justice Pius Langa, who made a brief appearance earlier, and Deputy Chief Justice Dikgang Moseneke, in Hlophe’s absence.
Ngalwana objected to having to take instructions from Hlophe, saying it would be inconsiderate.
”The man is indisposed — we have a great deal of unease in interrupting a client every time a legal issue is raised,” he said.
The JSC committee members then went into a private session to discuss a letter that Hlophe sent on March 27 complaining of bias and threatening to stop the hearing, and suggesting collusion between the SCA and the JSC.
Justice Minister Enver Surty recused himself from the hearings as he had been trying to help the parties resolve the matter, JSC spokesperson Marumo Moerane said on the sidelines. — Sapa