Hlophe goes for the kill

Embattled Western Cape Judge President John Hlophe has fired a salvo against former justice minister Enver Surty in his attempt to halt the Judicial Service Commission’s (JSC) hearing against him.

The Mail & Guardian understands that Hlophe wrote a week ago to then president Kgalema Motlanthe, accusing Surty of bias against him; and that Surty wrote to Motlanthe in response.

In a surprise move Surty was dropped from the justice portfolio by President Jacob Zuma when he announced his Cabinet on Sunday and was returned to his old job of deputy education minister.

Hlophe allegedly told Motlanthe that Surty told him the JSC had a “political agenda” against him and that he (Hlophe) “may be exposing himself to a humiliating environment” in the JSC. Surty is understood to have denied this vehemently in his letter to Motlanthe.

Hlophe filed an affidavit in the Gauteng South High Court this week in which he repeats some of the complaints he made to Motlanthe. The affidavit forms part of his latest bid to interdict the JSC from continuing its hearing against him.

“Even if I believe that he [Surty] is biased against me—as I do in respect of the JSC as currently constituted—he had no basis for recusing himself [from the JSC hearing] without my making a formal application to that end,” Hlophe’s affidavit reads.

The M&G reported last week that Hlophe’s attempt to have the JSC hearing declared illegal would be based partly on the argument that Surty’s recusal rendered the composition of the JSC hearing illegitimate.

Hlophe’s affidavit accuses the minister of “serious misdirection” and says: “In any event, I can think of no reason why he should have recused himself and that is why my counsel asked for reasons at the hearing of April 1 2009, which the chairperson dismissed nonchalantly.

“Neither I nor the judges of the Constitutional Court sought his recusal. His involvement with me concerned only the issue of whether or not I should return to my office. It had nothing to do with the allegations of judicial misconduct levelled against me by the judges of the Constitutional Court. It also had nothing to do with the complaint I laid against the judges of the Constitutional Court.”

In his answering affidavit Surty says it “is not clear whether [Hlophe] accuses me of bias or not. Whether he does or not, I state categorically that I am not biased against him.”

A source sympathetic to Surty told the M&G that Hlophe’s affidavit and his letter to Motlanthe are “weak attempts” to compromise people’s integrity and to create a political storm around Surty’s recusal from the JSC process.

“This latest affidavit is merely an attempt by Hlophe to invite Surty to divulge private and confidential discussions,” said the source.

Hlophe alleges that Surty made his comment about the JSC’s “political agenda” during settlement talks held between the two of them and Hlophe’s then senior counsel, Dumisa Ntsebeza, who has since withdrawn from the case.

In the court papers Surty, who confirms that he engaged in informal settlement talks with Ntsebeza and Deputy Chief Justice Dikgang Moseneke, reveals that he told Ntsebeza about his decision to recuse himself and Ntsebeza expressed no objection.

Surty has cited as a reason for his recusal his prior attempts to facilitate a settlement outside of the JSC process between Hlophe and the judges of the Constitutional Court.

Hlophe believes he was prejudiced by Surty’s failure to appoint a replacement when he recused himself from the JSC hearings. A source sympathetic to Hlophe told the M&G he believes Surty’s failure to understand the political ramifications of the Hlophe saga contributed immensely to his demotion this week to deputy minister.

This, according to the source, revealed Surty’s weakness as a minister in a politically sensitive case and is the reason he has been replaced by ANC heavyweight and Zuma loyalist Jeff Radebe, who “understands issues” better.

The source, who believes that Hlophe will win his latest court battle to set aside proceedings by the JSC, said that Radebe will appoint new members of the JSC and start the hearings afresh.

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