Constitutional Court judges Bess Nkabinde and Chris Jafta have, in an unprecedented move, raised a constitutional objection to the manner in which the Judicial Conduct Committee investigating allegations of misconduct against Western Cape judge president John Hlophe is constituted.
In papers filed in the high court in Johannesburg on October 18, the two judges argue that Section 24(1) of the Judicial Service Commission (JSC) Act is unconstitutional because it empowers "the president of the Judicial Conduct Committee to appoint a Public Prosecutor to gather and present evidence at the disciplinary hearing against a judge who is charged with misconduct".
The provision that allows this action, according to the judges' founding papers, "offends" the separation of powers, the principle of judicial independence and "the constitutional mandate of the [National] Prosecuting Authority as envisaged in section 179 of the Constitution".
This is the first time since the Constitutional Court was established in 1994 that judges from that bench have approached a lower court to rule on the constitutionality of existing legislation.
Nkabinde and Jafta are slap-bang in the middle of the long-running saga surrounding Hlophe, which dates back to 2008. Then, the full bench of the ConCourt had lodged a formal complaint with the Judicial Service Commission against Hlophe for allegedly attempting to improperly influence Nkabinde and Jafta in the Zuma-Thint matter during a visit to their chambers.
The ConCourt was due to hand down judgment in the matter that related to corruption and fraud charges against President Jacob Zuma – then an ordinary citizen.
The "saga" has endured various court cases and JSC hearings since 2008.
The current tribunal finally started its hearing on September 30, but stalled after Nkabinde and Jafta raised an objection to it continuing its work on the grounds that no formal complaint made under oath or by signed affidavit existed. Such a complaint is required in terms of the amended JSC Act that came into effect in 2010.
Tribunal president Joop Labaschagne overruled the initial objection raised by Nkabinde and Jafta, but the judges then asked for reasons to be provided for the ruling. According to Sello Chiloane from the JSC Secretariat, Labaschagne and his commissioners were still finalising the reasons.
The tribunal was adjourned indefinitely while reasons were being prepared, In the meantime, Jafta and Nkabinde now appear to have raised questions about the jurisdiction of the tribunal and the constitutionality of the JSC Act.
Their application asks for Section 24(1) of the JSC Act to be declared unconstitutional and that all actions by the tribunal declared unlawful and be set aside.
In their founding papers, Jafta and Nkabinde are at pains to clarify certain aspects of their conduct, including that they had, from the outset of the incident involving Hlophe, made clear that "we had individually dealt with the Judge President [Hlophe] after he had approached us and that we did not intend to lay a complaint against him".
In her founding affidavit, Nkabinde attempts to refute the "impression [that] has been created that we are delaying, unduly, the processes of the Tribunal and that we are refusing to testify. These damaging and unhelpful perceptions are far from correct. Any suggestion that we refuse to testify misses the point," she states.
"We reiterate that we do not have the slightest problem testifying before a properly constituted structure seeking to resolve the complaint that may have been properly lodged with the JSC either under the old rules or in terms of the amended JSC Act," said Nkabinde in her affidavit.
Nkabinde added that the duo "did not take kindly to the damaging and unhelpful insinuations that we are 'back-tracking' on the original complaint. Far from it."
In his affidavit, Jafta notes the Hlophe "matter has a long, sad history riddled with monumental errors in the decisions taken to investigate the complaint" against the Western Cape judge president.
Jafta also echoes Nkabinde’s stance that he is willing to testify before the tribunal as long as it is legally constituted.