The Supreme Court of Appeal on Tuesday heard arguments by legal advocacy body Freedom Under Law (FUL) in its bid to force the Judicial Service Commission to re-open a probe into Western Cape Judge President John Hlophe.
FUL’s application to have the commission re-open an investigation into the Hlophe matter was dismissed in the Pretoria High Court in December 2010.
FUL applied to the court to set aside a decision by the JSC, taken in 2009, not to continue investigating a complaint by the Constitutional Court against Hlophe, as well as a counter-complaint by Hlophe.
The matter began in 2008 when the Constitutional Court complained that Hlophe tried to influence two of its judges to rule in favour of President Jacob Zuma in a case involving the country’s multibillion-rand arms deal.
FUL’s legal counsel Wim Trengove submitted the JSC’s argument that there was no prima facie case in the complaints lodged.
“They did not apply the test to establish a prima facie case,” he told a bench of five SCA judges.
He argued the case was of huge public interest because of a serious attack on the integrity of various judges in the country.
He said the fact that one or two individual judges had in the meantime decided they did not want to proceed with the matter was unimportant.
“More important is to protect the Bench,” Trengove said, adding that the public’s confidence in the judiciary should be restored.
FUL submitted the JSC’s decision was a “cynical abandonment of its duty to safeguard the integrity of the judiciary”.
However, the JSC contended in papers that FUL had not shown any evidence to back up its submission that the JSC took a “decision” in 2008 for a formal hearing into the complaints. The commission submitted the evidence FUL relied on in this argument was “too tenuous”.
In papers the JSC argued that at its July 22 2009 meeting, where a decision was taken to drop investigations into the complaints, the body was entitled to look at the matter “afresh”, and that it was “rational and justifiable”.
The JSC submitted there was no basis for a review of its decision to drop the matter.
The SCA reserved judgement. – Sapa