Retired Constitutional Court judge Johann Kriegler’s challenge to the Judicial Service Commission’s controversial decision on Western Cape Judge President John Hlophe bears an ironic resemblance to Hlophe’s own successful petition to the Gauteng South High Court in June this year.
Under the auspices of non-governmental body Freedom Under Law (FUL), on Wednesday Kriegler announced his intention to take on review the JSC’s decision to drop its investigation of Hlophe, who had been accused of trying to influence Constitutional Court judges in a case involving President Jacob Zuma.
The JSC found that Hlophe’s actions were improper, but did not constitute the “gross misconduct” legally required for impeachment.
FUL has now engaged the services of leading silks Wim Trengove and Tim Bruinders, assisted by Nadine Fourie and Bennie Makola, to challenge the Hlophe decision, partly on grounds that the JSC complaints committee that deliberated the Hlophe matter included people who should not have been involved and “that a person who should have participated was prevented from doing so”.
Hlophe’s lawyers argued in the South Gauteng High Court that the JSC complaints committee was not properly constituted when it investigated the complaint against him in April after former justice minister Enver Surty recused himself.
The Mail & Guardian understands that FUL will challenge the participation of Black Lawyers’ Association president Andiswa Ndoni, on grounds that she publicly aired her views on the Hlophe matter and thus came to the JSC with a predetermined view.
It will also argue that another representative from the Bar should have participated, but did not because of a delay caused by the presidency in formalising his participation.
Advocate Milton Seligson, who previously served on the JSC complaints committee alongside fellow General Council of the Bar nominee advocate Marumo Moerane, confirmed to the M&G that he had resigned his position on the JSC after serving for 10 years.
Another advocate, Izak Smuts from the Grahamstown Bar, is understood to have been nominated to replace Seligson. Kriegler’s team will apparently argue that Smuts should have been part of the committee that deliberated on the Hlophe matter.
Seligson told the M&G that Smuts could not participate because Zuma had not signed his letter of appointment. This was confirmed by advocate Patric Mtshaulana, chair of the General Council of the Bar.
Moerane, also the JSC spokesperson, declined to comment.
In a media statement, Kriegler also said that the reasons given by the majority of JSC members for dropping the investigation of Hlophe were “factually indefensible and legally insupportable”.
More seriously, he added, the decision was “gravely harmful to the rule of law in that the serious allegations of misconduct and the credibility of senior members of the judiciary are left unresolved”. The 13 complainant judges of the Constitutional Court had no comment on the JSC’s decision to let Hlophe off the hook.
Kriegler also suggested in his statement that the “time-honoured and universally respected device of cross-examination” should have been used to decide between the various versions of Hlophe’s interaction with the two judges.