The Judicial Service Commission (JSC) “changed tack” on controversial Western Cape Judge President John Hlophe after President Jacob Zuma appointed four new members to it last year, the North Gauteng High Court heard this week.
Advocate Wim Trengove, acting for the NGO Freedom Under the Law (FUL), told the court that the JSC appeared to have discarded its earlier inquiries into Hlophe’s conduct, and his counterclaim against the judges of the Constitutional Court, after the change in its composition.
In the application, FUL is seeking to overturn the JSC’s decision not to proceed with its investigations.
The non-governmental pressure group, in which former judge Johann Kriegler plays a prominent role, argues that the reopening of the case is essential to maintaining the rule of law and protecting the image of the judiciary.
Trengove submitted to Judge Peter Mabuza that the JSC had been “doing everything right” in terms of its own rules when it launched an investigation into claims by judges of the Constitutional Court that Hlophe had attempted to influence the outcome of a corruption case involving Zuma.
At the time, it was thought that the corruption charges were all that stood between Zuma and the country’s presidency.
Trengove added that the JSC’s inquiry into Hlophe’s counterclaim that the justices had breached his constitutional rights by the manner in which they had lodged the complaint against him was also according to its rule-book.
But, he noted that the JSC “changed tack” after Zuma’s appointment of advocates Ismail Semenya, Dumisa Ntsebeza, Andiswa Ndoni and Vas Soni to the JSC.
The four men replaced advocate George Bizos; state advocate Kgomotso Moroko; former head of the ANC’s legal and constitutional commission and acting Northern Province premier, advocate Seth Nthai; and a representative of labour and the Public Service Commission, John Ernstzen.
The JSC then appeared to drop its earlier inquiries, which had included interviewing Constitutional Court judges.
It eventually set up a sub-committee to investigate the matter afresh before deciding not to follow up with a formal hearing.
That decision, Trengove asserted, was procedurally irregular and unconstitutional.
He also said that, according to the JSC rulebook, the sub-committee’s role was “not to evaluate the evidence” but merely to determine whether the claims against the judges were frivolous.
“At that point [the sub-committee] doesn’t inquire if it’s true or not,” said Trengove.
He said the matter of Hlophe’s conduct and his counterclaim were an obvious case where misconduct had to be ascertained because the “complaints were of gross misconduct — judges were accused of impacting upon a judgment while others were accused of conniving, cheating and lying to the public”.
These allegations had grave implications for the image of the judiciary.
In its heads of argument, the JSC contends that no decision was made on whether to pursue the complaints at the time of the JSC’s reconstitution in July last year.
Its new members had to acquaint themselves with the case, which was why it was started afresh.
But Trengove attacked these denials, calling them a “misapprehension”. He asserted that the decision to follow through with a formal JSC hearing had been taken a year earlier.
He provided transcripts of a JSC meeting on July 5 2008 at which the matter was discussed by the commissioners. According to the transcripts, there was unanimity that the charges of gross misconduct had to be tested.
The JSC’s subsequent conduct — including calling for a submission on whether the hearings should be open or closed — and affidavits bore out the fact that it was preparing for a hearing, Trengove argued.
The hearing continues on Friday.