A review before the Johannesburg High Court will determine once and for all whether a tribunal hearing against controversial Western Cape Judge President John Hlophe – charged with misconduct – can finally go ahead.
Also at issue is whether the National Prosecuting Authority (NPA) has the constitutional right to investigate judges in a disciplinary matter, or whether this should be left to their judicial peers.
Constitutional Court Justices Bess Nkabinde and Chris Jafta have asked the court for clarity on this sensitive issue.
After seven years of debate and hearings – and a Supreme Court of Appeal ruling – a tribunal process of the Judicial Service Commission (JSC) was brought to a halt last year after Nkabinde and Jafta raised constitutional objections to the way in which the conduct committee was constituted.
The tribunal was adjourned.
The two judges had, ironically, set the whole JSC process against Hlophe in motion by raising their concern to other judges in 2008 that he had tried to influence them improperly in the outstanding cases involving President Jacob Zuma – then still an ordinary citizen – and French arms manufacturer Thint.
The other justices of the Constitutional Court then announced that they intended lodging a complaint against Hlophe, a senior judge.
The move was particularly explosive because the court was due to hand down judgment in a matter related to corruption and fraud charges against Zuma.
The inquiry into Hlophe’s alleged misconduct went through various stages, including a ruling by the JSC that cleared him of gross misconduct charges.
This was a ruling that was taken to the Supreme Court of Appeal, which asked the JSC to review the matter.
The committee then decided that a tribunal should hear the case, and it finally began its hearings on September 30 last year.
The process was halted after Jafta and Nkabinde, in a surprising reversal, raised constitutional objections to the way in which the judicial conduct committee was constituted.
The two judges withdrew from the hearing, with Jafta saying he was “uncomfortable” at being interviewed by the evidence leader.
At the time, and again in court papers this week, they defended themselves by insisting that they “did not have the slightest problem testifying before a properly constituted structure”.
The saga has its roots in a formal complaint by the Constitutional Court to the JSC on June 17 2008. This alleged that Hlophe had approached Jafta and Nkabinde in connection with the court cases involving Zuma.
The justices alleged that he had told Nkabinde that he had a “mandate” to approach her and that the cases before the Constitutional Court were important for Zuma’s future.
No real case
Hlophe allegedly told her there was no real case against Zuma and that “it was now important to hold in his favour”.
The justices said that at the time Nkabinde was writing on a matter relevant to the case, and expressed concern about how Hlophe could have been aware of that fact.
Six justices submitted confirmatory statements. However, Jafta and Nkabinde later refused to make a formal complaint.
In the current matter, the two justices are seeking an order that the Hlophe case should continue to be considered under the previous JSC Act.
One effect of this would be that the tribunal would be become null and void, as it was constituted in terms of new legislation that took effect during the Hlophe investigation.
Act validity questioned
Critically, the two justices also question the validity of section 24 (1) of the new JSC Act, which, they say is inconsistent with the constitutional separation of powers because it allows the National Prosecuting Authority – after consulting the relevant minister – to collect and investigate evidence in a disciplinary hearing against a judge.
They argue that action against judges should be taken by their peers and not the NPA, as the authority falls under a minister of state and, therefore, the executive.
Asked to comment, constitutional and legal expert Wim Trengove argued that it is time to lay the long-running issue to rest. “Allegations of this nature against such a senior judge are very serious indeed,” he said. If he was found guilty, he should be impeached.
“It is untenable that after all these years there has still been no determination of whether he is guilty or innocent and yet he still holds a senior position.”
Selby Mbenenge, appearing for Jafta and Nkabinde, said that one of the main issues that had to be resolved was whether the new or old legislation should govern the Hlophe inquiry.
Separation of powers
Also critical was the constitutionality of an NPA investigation and the issue of the separation of powers.
“There are a number of pending disciplinary hearings against judges where prosecutors have been appointed to investigate, collect and adduce evidence before tribunals,” the court papers say.
“It seems that, as a matter of course in every tribunal established, the JSC appoints a prosecutor to perform these functions.
“It is in the interest of all concerned that clarification on whether the relevant provision is constitutionally compliant or not be made promptly so that those hearings may proceed.”
In response, Justice and Constitutional Affairs Minister Michael Masutha argues that Jafta and Nkabinde have failed to establish how the role of prosecutor, as outlined in the new JSC Act, could usurp the role of a tribunal made up of fellow judges.
Masutha disputes that the independence of the judiciary has been compromised in any way by the Act.
If they lose in the current case, it will be interesting to see whether Nkabinde and Jafta choose to take the matter to the appeal court.
If they do, the Hlophe matter will be further delayed.