/ 24 December 2009

Asmal presses on in Hlophe case

African National Congress (ANC) veteran Kader Asmal has applied to join in proceedings to set aside the Judicial Service Commission’s (JSC) decision not to hold a formal hearing on the dispute between Western Cape Judge President John Hlophe and Constitutional Court judges, Business Day reported on Thursday.

His application to be a friend of the court follows refusals by Hlophe and the JSC to consent to his joining the case.

The dispute between the judges began in May last year when 13 Constitutional Court judges complained to the JSC, alleging Hlophe sought improperly to influence the outcome of Constitutional Court cases involving ANC president Jacob Zuma.

Hlophe counter-claimed that the Constitutional Court judges had breached his constitutional rights by not first affording him a hearing and by publicising their complaint.

The increasingly bitter dispute divided the legal fraternity, and rocked the judiciary. It dragged on for more than a year, involving several court cases, many delays and changes to the make-up of the JSC.

Eventually, the JSC decided not to proceed to a formal hearing with cross-examination, and cleared all involved of gross misconduct.

The finding opened the way for Hlophe’s application to be appointed to the Constitutional Court this year. The decision provoked criticism and led to a high court review application by Freedom Under Law, headed by former Constitutional Court Judge Johann Kriegler.

When the JSC did not appoint Hlophe to the highest court, some in the legal fraternity thought Freedom Under Law should have abandoned its review application. They believed the dispute should end and the judiciary allowed to heal.

But Freedom Under Law, which from the beginning said its case was not about Hlophe, pressed on. It said the case involved broader issues, including the rule of law and the JSC’s constitutional mandate.

Asmal’s application signifies his determination not to let the constitutional issues raised go away.

Asmal’s attorney, Asmita Thakor of Webber Wentzel attorneys, said in papers that Asmal would be making submissions on legal issues not raised by Freedom Under Law.

These included the effect of the JSC’s decision on the separation of executive, legislative and judicial powers and on everyone’s right to have disputes decided by an independent and impartial forum.

As the JSC was the only body that could deal with the allegations of gross misconduct, it was obliged to decide the dispute by making ”whatever factual and/or legal findings are called for in the case”, Thakor said.

Asmal said he would also argue on international and foreign law.

Freedom Under Law consented to Asmal’s request, and the Constitutional Court judges said they had no objection. — Sapa