Cape Judge President John Hlophe’s lawyer told the high court in Johannesburg on Monday his client believed the Judicial Service Commission (JSC) was biased against him.
Vuyani Ngalwana called for an ”arbitration process” by a new panel of experienced judges or commissioners to replace the JSC’s investigation of Hlophe.
”We’re not avoiding the disciplinary investigation into misconduct allegations, but the proceedings need to be held by a fair panel,” he said.
Earlier, Ngalwana asked the court for an interdict to stop the JSC proceedings against Hlophe, citing bias and a procedural irregularity by the commission.
”An arbitration process would be a just and equitable solution to this entire process,” submitted Ngalwana.
It would be a first, as the Constitution doesn’t make provision for this way of dealing with a complaint against a judge.
Ngalwana said Hlophe believed the procedure against him had been ”fundamentally tainted”.
Hlophe is accused of interfering in a Constitutional Court judgement relating to President Jacob Zuma, and the JSC is currently deciding on the matter.
Hearings in April were not attended by Hlophe after Ngalwana submitted a sick note on his behalf.
Presiding Judge Nigel Willis said the decision to stop the hearings as requested by Hlophe was not for the high court to make.
”You are seeking extraordinary measures and the JSC has its processes which should run its course.”
The court heard the JSC had offered to recall the Constitutional Court judges who testified in the JSC hearing, so that Hlophe could cross examine them.
But Ngalwana said the only way forward was for a fresh start.
”The fly in the ointment is the element of bias,” he submitted.
Ngalwana said the JSC had already rejected a previous allegation of bias by Hlophe, so Willis’s suggestion that they find a solution together would not work.
The JSC’s counsel, Vincent Maleka, rejected the idea of arbitration, saying Hlophe must first wait for the JSC’s process to be completed, and then he must complain.
He said that at no stage during the JSC hearing had Hlophe asked for anyone to recuse themselves.
He said bypassing the JSC would give the impression they were biased.
Maleka said the JSC felt Monday’s court proceedings were ”not palatable” because there was a likelihood that he could be vindicated.
Willis said it would be more appropriate for Hlophe to wait for the matter to be concluded, and then seek a review, and that the application may be premature.
He said it would cause chaos in courts if matters were put on hold to allow various side appeals and challenges to the process to go through. –Sapa