Western Cape Premier Helen Zille was not the only person excluded from the Judicial Service Commission panel that irregularly heard the complaint against Western Cape Judge President John Hlophe. Senior Eastern Cape advocate Izak Smuts should also have been there.
This emerged following this week’s Cape High Court judgment setting aside the JSC proceedings that cleared Hlophe of misconduct last year.
The complaints against Hlophe arose in 2008 when Constitutional Court judge Bess Nkabinde and acting Constitutional Court judge Chris Jafta alleged that Hlophe tried to influence them to find in favour of then deputy president Jacob Zuma in a court case.
The Cape High Court found that the JSC was not properly constituted when it heard the complaint because it excluded Zille, the plaintiff in the case. Judges Jos Jones and Chamin Ebrahim declared the JSC’s proceedings unconstitutional and invalid.
Although this week’s judgment does not name him, advocate Smuts was also mentioned as being absent from the JSC hearing. Legal sources said this was because Zuma, by then president, had not signed off on Smuts’s appointment.
Smuts confirmed this week that he was expected take part in the proceedings. “I had been nominated by my colleagues at the General Council of the Bar’s AGM last July, but by the time of the JSC meeting on this matter, that nomination had not been converted into an appointment by the president,” Smuts said.
“I confess, I didn’t inquire why my appointment wasn’t made. I was told the president had been advised of my nomination, but it was out of our hands.”
Shortly after the Hlophe hearing, Smuts was appointed to the JSC.
The matter has now been referred to the JSC’s litigation commission, said JSC spokesperson Dumisa Ntsebeza. A decision still has to be made on whether the JSC will appeal the Cape High Court judgment.
A legal expert, speaking anonymously, said that if the JSC decides not to appeal, and the two Constitutional Court judges do not withdraw the complaints against Hlophe, the commission could be forced to re-adjudicate the matter.
However, the expert said that if they withdraw their complaint, and Hlophe withdraws his counter-complaint of unfair treatment by the Constitutional Court judges, the JSC will have wider scope not to re-open the matter.
Back from long leave this week, Hlophe appeared unfazed by the threat of a new probe. “I’m just carrying on with my work and really enjoying it. I’m glad to be back,” he said. “I prefer not to comment and will wait for the JSC’s decision.”
Meanwhile, there was widespread reaction in legal circles this week to the fact that the JSC has not recommended respected senior counsel Jeremy Gauntlett for a post on the Cape Bench.
Gauntlett, who had clashed with Hlophe on a few occasions, was among eight top advocates from the Cape Bar who publicly called for him to step down two years ago.
Senior counsels Patric Gamble and Elize Steyn and attorney Chantel Fortuin have been recommended to Zuma for the vacant positions.