Western Cape Judge President John Hlophe is opposing a court bid by media houses to force the Judicial Service Commission (JSC) to open the preliminary probe into his alleged misconduct to the public, his lawyer said on Monday.
Read Hlophe’s affidavit
Read Semenya’s affidavit
Advocate Barnabas Xulu said he was doing so on the grounds it would violate Hlophe’s rights.
”You don’t publicly investigate when you are dealing with a judge.”
The JSC is also opposing the application by Avusa, the Independent Group, the Mail & Guardian and the Freedom of Expression Institute, which seeks to force the commission to push ahead with a formal, public inquiry against the judge.
The newspaper houses have asked the high court in Johannesburg to set aside the JSC’s decision to hold a preliminary investigation before deciding whether to proceed with a full inquiry into whether Hlophe tried to sway Constitutional Court judgments relating to President Jacob Zuma.
They filed an urgent application on Friday, two days after the JSC set up a three-man subcommittee to hold closed-door hearings into the case.
The subcommittee was asked to recommend to the full commission by August 15 whether to press ahead with a formal investigation.
The newspapers argued that the JSC did not have the power to do this because it had already decided in July last year to hold a formal inquiry into the dispute.
Alternatively, the newspapers wanted the preliminary investigation to be open to the public.
The commission and Hlophe’s counsel were given until late on Monday to file papers, and the matter will be heard on Tuesday afternoon.
Dario Milo, who is appearing for the newspaper groups, said the matter had been set down for Monday, but was postponed by one day after the JSC and Hlophe signalled they would oppose.
The JSC subcommittee was expected to begin its preliminary investigation on Tuesday. It consists of JSC spokesperson advocate Marumo Moerane, advocate Ishmael Semenya and Judge Bernard Ngoepe.
Moerane said last week they would hear testimony from Hlophe and the two Constitutional Court judges who brought the complaint against him last May. This would happen behind closed doors, and though the finding would be made public, it seemed unlikely the testimony would.
Constitutional Court judges Chris Jafta and Bess Nkabinde claimed Hlophe sought to influence them improperly regarding pending judgments in the now-abandoned corruption case against Zuma.
The preliminary probe could result in a reprieve for Hlophe, who has aspirations to become a Constitutional Court judge, but risks impeachment if he were to face a formal investigation for gross misconduct.
Transparency has been a key issue in the 14-month-old saga.
Soon after the judges brought their complaint, they released a media statement about it. Hlophe lodged a counter-complaint that they had harmed his dignity by making the complaint public before he could answer to the charge.
In April ,the high court in Johannesburg overturned a decision by the JSC to hold its hearings into the matter in private, dismissing the commission’s argument that public scrutiny would harm the dignity of the office of the chief justice, the deputy chief justice and the judge president.
On May 18, the formal hearing was interrupted when 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 found it had been unfair to continue with hearings while Hlophe was ill on April 7 and 8, instead of granting him a postponement.
But they did not set aside the entire complaints procedure, as Hlophe had hoped. — Sapa