A full bench of the Johannesburg high court on Monday said it would rule within 10 days on the recent application by embattled Western Cape Judge President John Hlophe to bar Freedom Under Law (FUL) from intervening in his court bid to review a finding that he was guilty of impeachable conduct.
Hlophe opposed FUL’s intervention, saying that the not-for-profit organisation and its chair, retired constitutional court justice Johann Kriegler, had no direct interest in the matter, nor represented the public interest, but were pursuing a vendetta against him.
His counsel, advocate Thembalihle Sidaki, argued that in review cases such as this, the law allowed standing only for those who made a decision and the party who was the subject of that decision.
But advocate Max du Plessis SC, for FUL, pointed out that the organisation had been involved in complaints against Hlophe and the handling of those since 2009, and that Hlophe conspicuously relied on a court ruling that flowed from one of its earlier interventions in his present review application.
In 2011, the supreme court of appeal found in favour of FUL when it challenged a decision two years earlier by the Judicial Service Commission (JSC) that the evidence against Hlophe did not justify a finding of gross misconduct.
In his founding papers for the review application, filed in September, Hlophe recalled that the appellate court found then that the absence of cross-examination meant the JSC had irrationally failed to properly investigate the complaint against him.
This was relevant, he argued, because nothing in the evidence this year, after the complaint was reopened, changed the nature of the evidence considered in 2009.
Du Plessis said it was disingenuous of Hlophe to now seek to exclude FUL.
“We know that Freedom Under Law has a legal interest in this case because of what Judge Hlophe himself says in his founding review papers . . . A central feature of Judge Hlophe’s review in this case is, he says, that the 2009 finding of the JSC is correct and that there is no basis for the 2021 JSC decision.”
“He’s pulling into the very heart of his case the 2009 review that Freedom Under Law was involved in,” Du Plessis said, by submitting that the earlier decision of the JSC was crucial in examining the rationality of the adverse decision that came 12 years later.
He said, more broadly, it would also be in the interest of justice that FUL’s intervention be allowed.
“The subject matter of this case goes to the very heart of our constitutional democracy. It is the paragon case or a paragon case of public importance,” he submitted, because it dealt with the independence of the judiciary.
The protracted Hlophe saga stems from a complaint by the justices of the constitutional court that he sought to influence justices Bess Nkabinde and Chris Jafta on a pending matter related to the corruption charges against then presidential hopeful Jacob Zuma in the autumn of 2008.
The Judicial Conduct Tribunal found in April that Hlophe violated the constitution by attempting to influence judges to betray their oath of office, while flouting the principle that bars judges from broaching a pending matter with those seized with it.
In August, the JSC concurred after hearing submissions from Hlophe and referred the matter to Parliament to institute impeachment proceedings.
However, Hlophe maintains that the recommendation was deeply flawed because his actions did not amount to gross judicial misconduct as envisaged in section 177 of the Constitution read together with the Judicial Services Commission Act 9 of 1994.
Du Plessis said FUL resisted his application, hence its position in the matter was better suited to that of a respondent than an amicus, given earlier pronouncements by the courts in this regard, and its decision to intervene in the former capacity.
Hlophe’s counsel made plain that it would have opposed even a bid by FUL to be joined in the matter as a friend of the court. Part of Sidaki’s contention was that only one respondent could represent the public interest, and in this case that role fell to the justices of the constitutional court.
Du Plessis reached for Harry Potter author JK Rowling in countering this, telling the court: “Public interest is not, in Harry Potter terms, the Golden Snitch. Public interest is not something to be held by only one person at one time… it can be held by a number of parties at one time.”
FUL applied to intervene in the matter on September 21. The justices of the apex court did so shortly after. Hlophe did not object to that, but rushed to court last week to file a Rule 30 application to counter FUL’s application.
It was done, on Sidaki’s argument, to enforce Rule 18(5) of the Uniform Rules of Court, with one of the arguments advanced that FUL’s founding affidavit was too vague to allow those opposing to discern a specific argument to overcome and that it fatally failed to raise a right in the Bill of Rights, in terms of section 38 of the Constitution, that it was seeking to defend in the public interest.
Not so, said Du Plessis. FUL was bringing the application to defend its own and the public’s interest in the independence and impartiality of the judiciary. Constitutional Court case law dictated here that section 38 was applicable as a broad understanding to cases where fundamental constitutional principles were at stake, “even where that falls outside of the Bill of Rights”.
Du Plessis termed as “abusive” Hlophe’s bid to cast FUL’s application as vindictive on the basis, it appears, of comments Kriegler made in an interview many months ago. It was an attempt to force the retired judge to “enter the fray” and to force FUL to align itself to statements he may or may not have made, but which did not affect its standing in any event.
The practical impact of the application opposing FUL’s intervention by the impugned judge was that the main application was not heard, as intended, and will now likely only be dealt with in the new year. North Gauteng Deputy Judge President Aubrey Ledwaba, in setting down judgment for next week, said he was cognisant of the importance of the issues at stake, as well as the urgency of the matter.
The application was heard by Ledwaba, South Gauteng Judge Deputy President Roland Sutherland, and Judge Margaret Victor. Parliament has yet to schedule any committee meeting to deal with the Hlophe matter. He has not been suspended in the interim, as the JSC has elected not to recommend to the president that he do so. Complicating the case further, is the JSC’s failure thus far to submit the full record of its deliberations on the matter.