The Constitutional Court reserved judgment on Tuesday in a preliminary hearing on a conflict of interest stemming from a misconduct complaint laid against Western Cape Judge President John Hlophe.
The options put to the eight judges were that they:
- invoke a doctrine of necessity and hear the application for leave to appeal to the court by Hlophe;
- that they recuse themselves for the case and President Jacob Zuma appoints a new bench for the case; or
- that they dismiss the case and let the Supreme Court of Appeal judgment stand and be the last word on the matter.
The judges did not hear the merits of the actual appeal nor the application for leave to appeal.
The conflict of interest is the first of its kind for the Constitutional Court.
Hlophe, who was not present on Tuesday, had visited some of the court’s judges in 2008.
After that the judges laid a complaint against him on the grounds that he inappropriately broached the subject of a judgment relating to Zuma while he was still facing corruption charges.
Trial of legal applications
The Constitutional Court lodged a complaint of misconduct against him with the Judicial Service Commission (JSC) and released the complaint to the media.
Hlophe challenged their actions in the South Gauteng High Court in Johannesburg, setting off a trail of legal applications as well as defences by the Constitutional Court.
The JSC, meanwhile, held a hearing where Constitutional Court Judges Yvonne Nkabinde, Chris Jafta and Deputy Chief Justice Dikgang Moseneke testified.
The commission found there was insufficient evidence for the complaints and left the matter at that.
Re-opening investigation
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 Cape High Court.
The 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 at the Supreme Court of Appeal. — Sapa