Highly regarded Constitutional Court Judge Sisi Khampepe has been instructed by her doctors to avoid bright light and reading, and has been booked off for the next two weeks to rest her eyes.
What would usually be a private medical affair has become a source of public interest as Khampepe’s ailment is another hitch in a planned Constitutional Court hearing set down for November 29.
The hearing will deal with the vexed legal question of whether the court can entertain an appeal by Western Cape Judge President John Hlophe against gross misconduct allegations against him.
Due to Khampepe’s medical condition the quest to find a quorum of Constitutional Court judges to hold the hearing and perhaps eventually to hear Hlophe’s appeal continues, sources close to the case revealed.
The Hlophe matter is unprecedented because seven of the 11 sitting Constitutional Court judges were party to the gross misconduct charges laid against him with the Judicial Service Commission (JSC) in 2008.
The judges complained that Hlophe had tried improperly to influence the outcome of judgments then pending before the Constitutional Court and connected with corruption charges against President Jacob Zuma.
The Constitution states that a matter before the Constitutional Court must be heard by at least eight of its judges.
“Our client views this as a constitutional matter,” said Barnabas Xulu of Xulu Liversage, who is representing Hlophe. “The proper determination can be made only by the Constitutional Court, which, as you know, is the highest court in the land.”
Case against Hlophe
Deputy Chief Justice Dikgang Moseneke and Constitutional Court Judges Chris Jafta and Bess Nkabinde were called as witnesses and testified before the JSC in the hearings into the complaint against Hlophe and all three have recused themselves.
Kamphepe was already on sick leave when the legal teams arrived at the Constitutional Court on Wednesday morning, after being summoned to discuss the quorum hitches. The judge is expected to be assessed by her doctors in two weeks to see whether she will be able to participate in the hearing on November 29.
“We wish Judge Khampepe a speedy recovery and hope that the Constitutional Court will find a quorum to hear the judge president’s appeal,” said Xulu.
The case against Hlophe has dragged on for three years. After the Constitutional Court judges complained, the judge president counter-complained that the judges had breached his constitutional rights by the way in which they went about their complaint.
Eventually, in 2009, the JSC cleared both sides, but its decision was immediately challenged in the Supreme Court of Appeal by Western Cape Premier Helen Zille and, in a separate case, by the non-governmental organisation Freedom Under Law.
The JSC lost both cases and decided not to pursue litigation. Hlophe is challenging both judgments.
Zille has filed court papers opposing Hlophe’s bid to appeal against the appeal court judgment.
“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 court papers.
Hlophe contended that the Constitution allowed the president to appoint acting judges “if there is a vacancy or if a judge is absent”.
Although the appointment of an acting judge for the November term was expected to give the Constitutional Court the quorum it needed, nobody anticipated Khampepe’s medical problems.
Tipped as one of the forerunners for the chief justice position that eventually went to Mogoeng Mogoeng, Khampepe was appointed to the Constitutional Court by Zuma a year after the complaint was laid against Hlophe.
She is regarded as having a wealth of legal experience. Her Khampepe Commission report on the elite crime-busting Scorpions is well remembered as, in her final report, she recommended that the unit should continue to exist under the National Prosecuting Authority, but that political oversight should be transferred to the minister of safety and security.
Her recommendations were not accepted and the Scorpions were disbanded in 2008.