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Court sets aside JSC Hlophe hearings

The South Gauteng High Court in Johannesburg on Monday ordered that the Judicial Service Commission (JSC) proceedings against Cape Judge President John Hlophe be stopped.

Handing down judgement, Judge Nigel Willis said the JSC proceedings, which began in April, must be set aside and that new proceedings should begin on a date suitable to both parties.

”We are vindicated,” said Barnabas Xulu, Hlophe’s council.

The proceedings had centred on an allegation by the Constitutional Court judges that Hlophe had allegedly tried to interfere in a judgement relating to President Jacob Zuma. Hlophe in turn complained to the JSC about the judges’ decision to make the matter public before he had a chance to answer to the accusation.

Hlophe had applied to the court to stop the proceedings alleging bias by the committee hearing the matter. He said the JSC was not properly constituted when former justice minister Enver Surty recused himself.

Last Thursday Xulu said Hlophe had asked the members of the JSC’s complaints committee to resign.

”All the current members of the Complaints Commission violated the JSC’s rules so as it stands now they are accused of being biased … the easiest way out for them would be to resign and make vacancy for new people,” said Xulu.

He said this would allow the proceedings to start from the beginning before a new JSC, where charges would be formulated in a pro forma charge sheet and Hlophe would know exactly what case to face.

Last month Hlophe’s lawyer Vuyani Ngalwana told the South Gauteng High Court that veteran lawyer George Bizos was biased in the way he handled the hearing against Hlophe.

Ngalwana said Bizos was recorded in a transcript of Hlophe’s April hearing into alleged misconduct as saying the JSC had spent too much money on the hearing to postpone it.

”Now, if that doesn’t show unqualified bias then I suppose the applicant has to swallow his constitutional rights and present himself before the JSC.”

The JSC hearing began in a Sandton hotel on April 1, but was postponed when Ngalwana submitted a sick note.

When it reconvened four days later, Hlophe asked for a postponement, but the JSC refused. It went ahead with the hearing, even though Ngalwana had withdrawn.

Ngalwana said Bizos had suggested that the paucity of the financial resources of the JSC weighed higher than the interests of justice.

Earlier, Ngalwana said Surty was also among the people in the commission who were biased against Hlophe, but added that not all of the commission’s members were biased.

Surty’s counsel, Vas Soni, said that on the question of bias, the JSC was not a decision-making body, but a recommending body.

Ultimately the final decision on Hlophe’s fate lay with a vote in Parliament.

”That’s a brilliant point, the JSC doesn’t impeach,” Judge Willis said at last month’s court hearing. ”At the end of the day, Parliament decides.”

Lawyers for the both the JSC and the Constitutional Court judges had argued that Hlophe’s application for the hearings to be stopped was premature and that the judge should wait for the JSC’s proceedings to be concluded, and then raise objections.

The Constitutional Court judges, in particular, wanted the matter concluded as it had been dragging on for almost a year.

But Ngalwana said at the time that he wanted either a reconstituted JSC, or a panel of retired judges to form an arbitration forum.

Earlier in the case, Ngalwana said Hlophe wasn’t trying to avoid being judged on whether he tried to interfere with a Constitutional Court ruling on President Jacob Zuma, but was exercising his rights. — Sapa

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