Seven of the 11 sitting judges of the Constitutional Court would be in conflict and unable to hear an appeal from Western Cape Judge President John Hlophe, according to court papers filed by Western Cape premier Helen Zille this week.
The seven Constitutional Court judges were among those who alleged in 2008 that Hlophe had improperly tried to influence them over pending judgments connected to corruption charges against President Jacob Zuma.
This week, Zille filed court papers opposing Hlophe’s bid to appeal against a Supreme Court of Appeal (SCA) judgment finding that, as Western Cape premier, she should have been a member of the Judicial Service Commission (JSC) panel that decided to clear Hlophe of the 2008 complaint of gross misconduct laid by the judges of the Constitutional Court.
“If leave to appeal is granted, the Constitutional Court would not be in a position to hear the appeal as seven of the 11 sitting judges would be required to recuse themselves and the court would not be quorate,” Zille stated in the court papers.
Advocate Paul Hoffman, director of the Institute for Accountability in Southern Africa, said the South African Constitution stated that a matter before the Constitutional Court must be heard by at least eight of its judges.
Zuma could not appoint acting judges to hear the appeal as the Constitution allowed acting judges to be appointed only when there was a vacancy or a judge was absent and did not cover a situation in which judges had to recuse themselves.
“There are neither absenteeisms, nor are there vacancies,” he said. “Therefore, the president cannot appoint other acting judges to fill up the bench for the benefit of Hlophe.” In the court papers, Zille said Hlophe’s application for leave to appeal was also filed late “for reasons which are unacceptable on any level”.
Zille pointed out that the JSC had had “a substantial and material interest” in the application for leave to appeal, yet it had decided not to join in Hlophe’s application. Hlophe is appealing against two judgments of the SCA that set aside the decision to clear him of gross misconduct.
The JSC’s decision was taken on review to the SCA in two separate cases, one by Zille, and the other by the nongovernmental organisation, Freedom Under Law. The JSC lost both cases and decided not to pursue litigation.
Hoffman said there were simply not enough Constitutional Court judges to constitute a quorum for any appeal hearing.
“The difficulty that Hlophe faces in trying to take the matter to the Constitutional Court is that the dispute involves most of the judges of the Constitutional Court as they were the complainants against Hlophe,” he said. “Therefore, there are not enough Constitutional Court judges to constitute a quorum in any appeal hearing. In those circumstances, it is obviously in the interests of justice that the decision of the SCA, in both the Zille and the Freedom Under Law matter, should be made to stand and be implemented by the JSC without delay.”
The JSC said last month it wanted a panel of seven judges to hear the complaints by the Constitutional Court judges against Hlophe and his counter-complaints against them.