The tribunal that will be set up by the Judicial Service Commission (JSC) to deal with the complaint of gross judicial misconduct brought by Constitutional Court justices against Cape Judge President John Hlophe could face a legal challenge.
Hlophe's attorney, Barnabas Xulu, told the Mail & Guardian this week that he did not believe the complaint the justices made in 2008 could be dealt with "retrospectively" using new legislation.
"There is a rule widely applied and recognised against the retrospective application of legislation, which the JSC violates by invoking the new Judicial Service Commission
Act in order to resolve this complaint, which arose before the pro-mulgation of the amended Act," Xulu said.
The long-running issue of how to deal with the matter has presented an unprecedented headache for the commission.
The complaint was lodged in 2008 when seven of the 11 sitting Constitutional Court justices complained that Hlophe had tried to improperly influence two of them to rule in favour of President Jacob Zuma in a case involving South Africa's multibillion-rand arms deal.
However, a breakthrough came on Thursday when the commission announced that its recently convened judicial conduct committee had recommended it set up a tribunal to hear the matter.
"The committee considered that this complaint, if established, will, prima facie, indicate gross misconduct, which may lead to impeachment. Accordingly, the committee has recommended to the Judicial Service Commission that a tribunal be appointed to investigate it," the commission announced.
"In doing so, the committee took into account, inter alia, the clear pronouncements of the Supreme Court of Appeal that the Judicial Service Commission must make a determination whether the judge president was guilty of gross misconduct or not."
Xulu said he would not try to stop the commission from setting up a tribunal, because his firm's resources were slim and the justice department had still not paid his legal fees.
Last month, Justice Minister Jeff Radebe issued a press statement announcing that the state would be paying Hlophe's lawyer's fees, after Xulu alerted the judicial conduct committee that he was being hamstrung by the government withholding his firm's fees.
Xulu told the M&G he was owed more than R2-million for his work in fighting Hlophe's legal battles. Hlophe has claimed that, as a judge president, he is entitled to have his legal fees paid.
The spotlight will now be on the tribunal, because the judicial conduct committee has dismissed another complaint, lodged by the non-governmental organisation Freedom Under Law.
"The committee accepted that some of the utterances made by Judge President Hlophe in the course of the proceedings that followed upon the laying of the complaint by the justices of the Constitutional Court will, if established, indicate gross misconduct on the part of the judge," the JSC said.
"However, the committee considered the circumstances under which the utterances were made and came to the conclusion that, in view of such circumstances, it is not likely that such misconduct would justify impeachment."
In these circumstances, the proper course to follow would be to recommend that an enquiry be held, it said. "This would, however, expose the judge to complaints and penalties that were not there when the complaint arose. This would violate the established rule of law against retrospective application of legislation."
As a result, the committee stated that the freedom under law complaint could therefore not be proceeded with and it was accordingly dismissed.
But the tribunal could face other legal problems too, which were outlined in Hlophe's submission to the judicial conduct committee.
The code of judicial conduct, which is expected to serve as the prevailing standard that judges should adhere to, has not yet been promulgated, Hlophe's submission claims.
Hlophe's submission also challenges whether it is in the interest of "judicial independence" to allow a tribunal to deal with the case.
"The committee must decide whether this matter can ever be dealt with lawfully and fairly, given its history, the procedural and substantive violations that the JSC has been held to have committed and the interests of judicial independence," the submission states.
The M&G understands that only three of the six people meant to sit on the committee took part in some of its discussions, whereas at other times there were four.
The committee comprises Chief Justice Mogoeng Mogoeng, Deputy Chief Justice Dikgang Moseneke and four judges, but Mogoeng and Moseneke had to recuse themselves.
This unusual situation arose because the chief justice was involved in trying to broker a deal between the parties when his deputy was one of the complainants in the case, said the spokesperson for the JSC, Dumisa Ntsebeza.
The third person who recused himself is Judge Lex Mpati, president of the Supreme Court of Appeal, which heard the case previously.
Ntsebeza said the committee, which falls under the JSC, faced problems in dealing with the Hlophe case. "Wherever you go in this matter, everybody is compromised," he said.
Following the Constitutional Court justices' complaint against Hlophe, he countercomplained that the justices had breached his constitutional rights in the way they went about making their complaint.
The JSC cleared both sides in 2009, but the decision was immediately challenged in the appeal court by Western Cape Premier Helen Zille and, in a separate case, by Freedom Under Law.
When the JSC lost both cases, it decided not to pursue litigation. Hlophe, on the other hand, is challenging both judgments.
In March this year the Constitutional Court declined to hear Hlophe's case because so many of its own justices were involved and the matter was referred to the judicial conduct committee.
Another challenge posed in Hlophe's submission to the judicial conduct committee is whether he should be held liable for gross judicial misconduct for "opinions, views and beliefs expressed in the course of a private in-chamber conversation with judges who he considered to be his friends.
"In other words, should it be considered gross judicial misconduct when a judge expresses a view, opinion or belief to another judge in private on a matter that is pending or has been decided by that judge?" the submission states.
"Should there be a complete bar to in-chamber conversations between judges on matters that are pending before them in order to insulate presiding judges from 'attempts to persuade' by others?"
The public pressure brought to bear on Hlophe to resign, even before the JSC had considered how to deal with the case, had given the "inescapable impression" that the complaint was intended to mobilise and generate adverse publicity that would force him off the bench, Hlophe's submission contends.
In the analysis of the facts and evidence relevant to the complaint, Hlophe's submission states that the complaint turns, essentially, on what transpired during the course of two conversations – one between Hlophe and Justice Chris Jafta, and the other between Hlophe and Justice Bess Nkabinde.