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29 Aug 2009 11:04
The Judicial Service Commission on Friday dismissed the protracted dispute between Western Cape Judge President John Hlophe and the Constitutional Court.
The decision brings to an end a 15-month saga that split the South African legal fraternity and, by clearing Hlophe of impeachable charges, potentially paves his way for appointment to the highest court in the land.
The JSC said it would not proceed with an investigation against Hlophe for gross misconduct following a complaint by two judges last May that he approached them about the now abandoned corruption case against Jacob Zuma, before he became president.
Although the commission criticised Hlophe for raising pending judgements in the Zuma affair with Constitutional Court judges Bess Nkabinde and Chris Jafta, it failed to find evidence that he had tried to influence them.
“The commission accepted that it might have been unwise and imprudent for Hlophe JP to talk to the judges about the cases and make the comments that he did.
“But it is not persuaded that Hlophe JP’s actions make him guilty of gross misconduct,” it said in a summary of its decision, which was not unanimous.
A minority report called for a formal inquiry, pointing out that at issue was not whether Hlophe did indeed influence the judges, but whether he tried to do so.
The dissenting JSC members said only cross-examination could clear up the contradictions of fact between Hlophe’s testimony and that of the Constitutional Court judges.
But the majority was not convinced that a full inquiry with cross-examination of Hlophe would help to establish what his true intention had been in discussing Zuma’s legal woes with Nkabinde and Jafta.
JSC spokesperson advocate Marumo Moerane said the commission also decided to dismiss a counter-complaint by Hlophe against the judges for violating his rights by going public with their complaint minutes after it was made.
“The decision was to drop the charges and the counter-complaint because, in the view of the commission, proceeding with the matter would have been futile in that it would not have amounted into a guilty finding of gross misconduct,” Moerane said.
The JSC said it could understand that Hlophe felt aggrieved that he had not been informed that the matter was going to be made public, but criticised him for lashing out at Constitutional Court judges and outgoing Chief Justice Pius Langa in particular.
He accused Langa of masterminding leaks on the case in a “well-orchestrated media campaign” against him.
The JSC said he made “some unfortunate allegations against the Constitutional Court judges and especially the chief justice and deputy chief justice imputing improper motives to them”.
Hlophe based his complaint on inferences of intention, the JSC said, as the judges had done with him.
“Accordingly, both the complaint and the counter-complaint are hereby finalised.”
JSC sources have hinted that the body was deeply divided on the Hlophe ruling, explaining why it took two weeks to be made public.
The decision was in fact taken on August 15, when a three-man sub-committee chaired by Gauteng Judge President Bernard Ngoepe made recommendations based on a preliminary probe.
The sub-committee heard evidence from Hlophe, Nkabinde, Jafta and Langa and Deputy Chief Justice Dikgang Moseneke in late July.
Jafta and Nkabinde reiterated at that hearing that Hlophe had said the cases involving Zuma’s dealings with arms manufacturer Thint must be decided properly, that the ANC leader was being persecuted just like he had been, and that the Constitutional Court presented their “last hope”.
Both said it led them to believe that Hlophe wanted the cases to be decided in Zuma’s favour, and Langa in his testimony agreed, saying “there is everything wrong with a discussion of that kind”.
Hlophe denied the charge and said he believed the complaint against him was politically motivated.
On Friday, he responded to the news that he was cleared with a terse “no comment whatsoever”.
He is expected to return to work at the Western Cape High Court on Monday after a long, enforced absence.
Hlophe was recently nominated for a position as Constitutional Court judge, though his ambitions of becoming chief justice were thwarted this month when Zuma nominated Judge Sandile Ngcobo for the post.
Interviewing of candidates to fill vacancies at the Constitutional Court in October starts next week.
The African National Congress welcomed the JSC’s decision, saying it would restore confidence in the independence of the judiciary, but opposition parties strongly disagreed.
Democratic Alliance leader Helen Zille said it “casts a dark cloud over South Africa’s entire judiciary” while Independent Democrats leader Patricia de Lille said Hlophe’s reputation had been irredeemably compromised. - Sapa
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