The Judicial Service Commission (JSC) violated Cape Judge President John Hlophe’s rights by going ahead with misconduct hearings against him while he was sick, two judges of the South Gauteng High Court in Johannesburg ruled on Monday.
Judges George Maluleke and Moroa Tsoka called the proceedings of April 7 and 8 ”unlawful”, set them aside and ordered that new hearings be arranged.
”The JSC acted improperly and unreasonably in refusing the applicant a further postponement,” their judgement read.
”The decision of the JSC unjustifiably violated the applicant’s right to a fair hearing and to participate freely in the proceedings which affect him.”
On May 30 last year the Constitutional Court judges lodged a complaint with the JSC alleging that Hlophe had tried to influence a judgement relating to President Jacob Zuma they were working on.
Soon after laying the complaint, they released a media statement about it, which led to Hlophe’s counter complaint that they had harmed his dignity by making it public before he could answer to the charge.
On May 18 this year Hlophe applied to the Johannesburg court to have the entire proceedings against him halted and declared void, citing among his reasons bias by some members of the JSC and that the complaints committee was not properly constituted.
The judges confined their judgement to the proceedings of April 7 and 8, and did not set aside the entire complaints procedure, as Hlophe had hoped.
According to the majority judgement, after granting a postponement on April 1 at the start of the JSC hearings because he was sick, the JSC went ahead without him on April 7 and 8, even though a doctor ordered bed rest and no travel until his sinus and bronchitis cleared up.
Maluleke and Tsoka said it was improper and unreasonable, and the JSC ”became poorer for it” wrote Maluleke, with Tsoka agreeing.
They shouldn’t have let previous developments — a bid in the same court last year by Hlophe to stop the hearings, subsequent delays as it moved through the Supreme Court of Appeal and earlier postponement applications — cloud their judgement.
The judges said although the JSC wanted to conclude the matter and that the delays were irritating and leaving the judiciary ”bruised and eroded”, these concerns couldn’t overshadow Hlophe’s right to a fair hearing.
They said being present for cross-examination, which allowed the study of demeanour, was considered vital in establishing witness credibility. The JSC’s later offer that he make representations didn’t cure the prejudice he suffered.
Only he could have cleared up what the conversations with Constitutional Court Justice Bess Nkabinde and Acting Judge Chris Jafta meant, the judges continued.
Judge Nigel Willis presented a minority judgement in which he felt the JSC hearings and, if necessary, a review, should take place before the courts could intervene.
”It must be emphasised that public policy is strongly against interventions of the kind which the applicant is now seeking before the matter has been disposed of by the tribunal in question,” wrote Willis.
He warned of ”sluice gates” being opened that could render the functioning of courts and tribunals ”untenable” and that intervening could damage the JSC.
Willis said the Constitutional Court judges also had a right to have their complaint fully considered. He said a two thirds majority in Parliament would ultimately decide whether the JSC’s recommendations were accepted.
Hlophe’s lawyer Barnabas Xulu said afterwards: ”We are vindicated”.
The lawyer for the Constitutional Court judges did not want to comment until they had studied the judgement.
A JSC spokesperson was not immediately available to comment. — Sapa