Why the ConCourt couldn’t hear Hlophe case

On Thursday, the Constitutional Court handed down reasons for the postponement of the hearing of two cases involving Western Cape Judge President John Hlophe and, in which, some of the Constitutional Court justices were party to the events under argument.

In a jointly written judgment, read by Justice Johan Froneman, the court noted that deputy chief justice Dikgang Moseneke had — 10 days before the matters were to be heard on September 22 — recused himself.

His recusal meant that only only seven Constitutional Court judges would be available to hear the matter on September 22 since the vacant seat on the bench after chief justice Sandile Ngcobo’s retirement had not been filled. Justices Chris Jafta and Bess Nkabinde had already recused themselves from the matter as they were involved in the events that lead to the full bench of the Constitutional Court laying a charge of gross misconduct against Hlophe.

Froneman noted that the Bench was unable to quorate to hear arguments on how, or if, the matter should be heard.

The Constitutional Court needs a minimum of eight members to quorate.

The matters relate to allegations that Hlophe had, in 2008, improperly approached Nkabinde and Jafta in an attempt to sway them in a corruption case involving Jacob Zuma that was before the Constitutional Court.

Hlophe is challenging two earlier Supreme Court of Appeal judgments: one found the Judicial Service Commission had shirked its constitutional mandate by not cross-examining Hlophe and the Constitutional Court Bench after the latter had lodged a complaint against the judge president. And Hlophe had then responded with a counter-complaint. The second found that the JSC had not been constituted properly when it cleared Hlophe of gross misconduct.

In Hlophe’s latest application he submitted that, with seven of the Constitutional Court justices directly involved in the case, and Chief Justice Mogoeng involved in more recent attempts to mediate an out-of-court solution to the impasse, Zuma should appoint acting justices to the court to hear his case.

Hlophe contended that section 175 (1) of the Constitution allowed the president to appoint acting judges “if there is a vacancy or if a judge is absent”.

He said in court papers that dismissing his application would be unconstitutional as it would directly block his access to the Constitutional Court.

However, Freedom under Law, which first challenged the JSC’s decision not to investigate the complaints against Hlophe, said earlier in September that if Zuma were to do so it would be “inimical” to the Constitution and “the principle of judicial independence”.

Freedom under Law argued that such appointments would inevitably create the perception that they were hand-picked, as well as having the “potential of undermining directly and blatantly the separation of powers and allow for executive interference in the decision of the court”.

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Niren Tolsi
Niren Tolsi is a freelance journalist whose interests include social justice, citizen mobilisation and state violence, protest, the Constitution and Constitutional Court, football and Test cricket.

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