The judges of the Constitutional Court will face the dilemma of not having a quorum on Tuesday due to a conflict of interest.
This will happen when the court sits to hear an application related to a complaint against Western Cape Judge President John Hlophe that was laid three years ago.
When the court sat in September to hear the application, three of the judges — Deputy Chief Justice Dikgang Moseneke, Judge Chris Jafta and Judge Bess Nkabinde — recused themselves.
This was because they had been witnesses and had testified in the Judicial Service Commission’s (JSC) inquiry into the misconduct complaint.
The judges said they would look into the possibility of finding an acting judge to make up the quorum.
Conflict of interest
Tuesday’s hearing was expected to be argument over whether the court can hear issues relating to the applications for leave to appeal given the conflict of interest and the court not being quorate.
Included in the issues to be heard is whether acting judges may be appointed in terms of the Constitution to decide the applications.
If not, the question is whether the doctrine of necessity allows the conflicted judges to participate in determining the applications for leave to appeal.
Hlophe was accused of broaching the subject of a case involving Jacob Zuma before he became president, when he popped in for a social visit with some of the judges at the Constitutional Court.
The judges of the court lodged a joint misconduct complaint against Hlophe about the visit to the JSC.
‘Judicial crisis’
Hlophe in turn, took the judges to court to declare their complaint and publication of their complaint unlawful and unfair.
The case set off a chain of complications at one point referred to as a “judicial crisis”.
It came at a time when judges were heavily criticised if they did not hand down a judgment in favour of Zuma, who was mired in now abandoned corruption and fraud allegations, as well as a power struggle between his supporters and those of eventually ousted president Thabo Mbeki.
The JSC eventually held an inquiry and Moseneke, Jafta and Nkabinde testified. The commission found there was insufficient evidence for the complaints and left the matter at that.
‘Unconstitutional and invalid’
However, legal advocacy body Freedom under Law tried to force the JSC to re-open its investigation into Hlophe in an application to the North Gauteng High Court in Pretoria but the case was dismissed last December.
Democratic Alliance leader Helen Zille lodged a similar case in the Western Cape High Court.
The high court found in Zille’s favour that the JSC’s decision was “unconstitutional and invalid” because it had excluded her as premier and was therefore not constituted properly.
The JSC then appealed and lost. — Sapa