Western Cape Judge President John Hlophe’s ”conscience is clear” concerning allegations that he attempted to improperly influence two judges of the Constitutional Court, according to court papers.
In an affidavit filed as part of an urgent court application by the Mail & Guardian, e.tv, Avusa and Independent Newspapers to force the Judicial Service Commission (JSC) to open hearings into Hlophe and 13 acting and permanent judges of the Constitutional Court, Hlophe indicated that he will abide by the court’s decision on the matter.
The South Gauteng High Court is scheduled to hear arguments on this matter on Tuesday afternoon.
Hlophe added that he had submitted court papers only in a bid to help the court come to ”a right determination” on the matter.
This formed part of Hlophe’s replying affidavit to the media houses’ court bid, which challenges the JSC’s decision to hold a preliminary hearing into the judges’ complaint and Hlophe’s resultant counter-complaint in private.
The media houses, in court papers prepared by Dario Milo of attorneys Webber Wentzel, will essentially be asking the court to rule on whether the JSC is, at this stage of Hlophe’s long-running feud, allowed to hold a preliminary hearing.
The media houses will be asking the court to set aside the preliminary investigation into Hlophe, or alternatively open the envisaged preliminary hearings to the media and the public.
”Let me state from the onset that I have nothing to hide from the public of South Africa relating to the allegations made against me by the justices of the Constitutional Court. My conscience is clear about all these allegations and I will appear before a properly constituted Judicial Service Commission when I am called to do so,” Hlophe said.
He also stated that the media’s attempt to create the impression that there is ”a conspiracy” in his ”favour” to cover up his alleged wrongdoing was ”false”.
His version of events, Hlophe added, had already been set out in his June 2008 affidavit, which ”was widely reported in the media”.
Hlophe said that he owed the public the duty of appearing before the JSC ”if the public confidence” in him as a judge is to continue.
”I will accordingly meet with the JSC to answer questions about the allegations against me, whether the meetings are open or whether they are closed. However, my duty does not extend to appearing before the media to answer allegations of wrongdoing. In my experience and view, the media coverage of these allegations against me has been unfair and most disparaging,” he said.
Hlophe urged both the media and the South Gauteng High Court to understand that he has ”nothing to hide” and respected the processes of the JSC.
Advocate Ishmael Semenya, who filed an affidavit on behalf of the JSC and is a member of a subcommittee scheduled to hold the preliminary hearing on Hlophe, told the court that the JSC has the power to regulate its own processes.
He added that the JSC, based partly on the newly reconstituted JSC, had decided to begin the hearings as per their rules on a clean slate.
”This application concerns matters of vital importance in our democracy. The JSC is a public body charged with significant functions in a democracy. Before it are complaints which could ultimately result in the impeachment of fourteen of the most senior judges in our country,” Milo told the M&G.
He added that these were unique complaints as they had not been made by ”a member of the public” on the conduct of a particular judge.
”These are complaints by the entire Constitutional Court bench, as well as two of its acting judges, against the judge president of the Western Cape High Court, and a counter-complaint by the judge president against these judges. Because the detail of these complaints is in the public domain, the public know who these judges are, and exactly what they are alleged to have done. So there is no justification whatsoever for the secrecy that is now being adopted,” said Milo.
JSC shortlist includes Hlophe
Meanwhile, candidates for Constitutional Court vacancies will be made public on Friday, the JSC said on Tuesday.
”We are officially publishing it on Friday,” a commission official said.
The Star reported on Tuesday that Hlophe and two senior colleagues who accused him of gross misconduct will be interviewed for four vacancies at the court.
A shortlist provided by a JSC subcommittee at the weekend also included top Cape advocate Jeremy Gauntlett, who was once accused by Hlophe of racism in a leaked memorandum to then-justice minister Brigitte Mabandla in 2005.
The JSC received a total of 28 nominations for the four vacancies, and the shortlist now stood at 23.
The shortlist, which was circulated on Monday to the wider JSC, also included Johannesburg High Court Judge Nigel Willis, who, in a minority judgement, differed from a ruling that a JSC inquiry into the complaint against Hlophe should be heard afresh.
It also included Judge Robert Nugent, who ruled against Hlophe in favour of the Constitutional Court when its judges appealed against a different Johannesburg High Court judgement in favour of the judge president.
The JSC subcommittee opted not to exclude Hlophe and Supreme Court of Appeal judges Chris Jafta and Franklin Kroon, who, as acting Constitutional Court judges, aligned themselves with the complaint against Hlophe headed by Chief Justice Pius Langa.
The JSC interviews were expected to take place in Kliptown, Soweto, from September 5 to 7.
Jafta and Kroon were acting on the Constitutional Court last year when Hlophe was alleged to have tried to influence Jafta and Justice Bess Nkabinde, who were working on a judgement relating to ANC president Jacob Zuma.
All the justices of the Constitutional Court lodged a complaint with the JSC over this. Hlophe, in turn, lodged a counter-complaint against the 13 judges, including Kroon and Jafta, which has yet to be concluded by the JSC.