/ 17 September 2009

Kriegler turns to court over JSC Hlophe decision

Freedom Under Law (FUL) chairperson Johann Kriegler will turn to high court action in his bid to challenge the Judicial Service Commission’s (JSC) decision over Judge John Hlophe.

The organisation, headed by the former Constitutional Court judge, said in a statement on Thursday that the JSC had not responded to a letter it had sent.

The letter requested written reasons for its decision not to pursue a formal inquiry into a complaint and counter-complaint between Hlophe and Constitutional Court judges.

”To date, no response has been received and as such FUL will now proceed to the next stage, which requires the filing of founding affidavits in the high court,” said FUL.

The organisation said the letter advised the JSC that the organisation would apply to court to have the decision on Hlophe set aside on review.

However, before doing so — in accordance with the Promotion of Administrative Justice Act — a request was made to the commission for written reasons.

The letter was sent to the acting JSC chairperson Lex Mpati on September 10 and the organisation was given until September 15 to respond.

The matter was considered urgent by FUL as the JSC would be conducting interviews with candidates for the Constitutional Court from September 20.

No response was received and now the organisation was preparing to file high court papers next week.

”Justice Kriegler will be meeting with counsel this weekend to finalise … [founding affidavits], to facilitate papers being filed in the course of next week.”

Last week, according to a Mail & Guardian article, Kriegler said the JSC’s decision not to hold a formal enquiry had left Hlophe with a cloud over his head.

He said nobody could know whether the allegations against Hlophe were true or not, because the JSC had not pursued the matter fully.

”That is the basic malfunction — it has left poor Judge Hlophe with a cloud over his head.”

His remarks related to the charge laid by Constitutional Court judges against Hlophe last year for allegedly making an inappropriate approach to the judges regarding a judgement on Jacob Zuma before he became president.

Hlophe had also laid a counter-complaint that the Constitutional Court judges had made public their concerns before he had had a chance to respond.

After a preliminary hearing, a reconstituted JSC decided not to go further with the matter and Hlophe ended his special leave by returning to work.

On Thursday FuL said the letter sent to Mpati indicated that the organisation felt the JSC’s decisions had contravened its constitutionally mandated role.

”[These decisions] have left unanswered a very serious complaint and counter-complaint, pervaded by factual disputes, concerning the conduct of judges of the highest court in our country and a judge president of a provincial division of the high court.”

”Great harm” had been caused to the administration of justice, FuL said in its letter.

The organisation also said the decision had ”undermined the independence and impartiality of the courts”.

There was no resolution as to whether the judges involved in the matter were ”fit and proper” or ought to be impeached. — Sapa