High court allows Freedom Under Law to oppose Hlophe’s review bid

A full bench of the Johannesburg high court has dismissed with costs Western Cape Judge President John Hlophe’s application to bar Freedom Under Law (FUL) from joining as an opposing party in his bid to have a finding that he committed impeachable misconduct set aside.

The court ruling on Monday 29 November held that FUL’s bona fides in litigating in public issues of constitutional importance, has repeatedly been accepted by the courts.

In this particular instance, Deputy Judge President Roland Sutherland said, the issue was not only of great constitutional significance but that Hlophe’s objections to FUL’s joinder paradoxically supported its case.

Hlophe had argued that FUL’s history of legal interventions relating to the misconduct inquiry into his attempt to sway two constitutional judges 13 years ago, disqualified it because it constituted a vendetta and not a legitimate public-interest claim.

“What FUL has shown . . . is that it has a keen interest, and even a committed adversarial position in my person, Hlophe said. “I set out hereunder how the FUL interest appears to promote my removal at all costs. This, however, does not translate to a legal interest giving FUL an entitlement or right to be joined in the review application.”

FUL argued that the opposite was true.

Advocate Max du Plessis SC, appearing for FUL, said it was ironic that in his argument to have the recommendation of the Judicial Service Commission (JSC) that he be impeached set aside, Hlophe conspicuously relied on a court ruling that flowed from one of the organisation’s earlier interventions.

In 2011, the supreme court of appeal (SCA) found in favour of FUL when it challenged a decision two years earlier by the (JSC) that the evidence against Hlophe did not justify a finding of gross misconduct.

In his founding papers, Hlophe stressed that the SCA 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.

The Judicial Conduct Tribunal found in April that Hlophe had 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. 

Hlophe filed for review weeks later, insisting that the recommendation was flawed because his actions did not amount to gross judicial misconduct as envisaged in section 177 of the Constitution, read together with the Judicial Service Commission Act 9 of 1994.

Sutherland said it might be that some mileage would, when the review application is heard, be derived from FUL’s partisanship in the matter but none of this seemed material at present.

“As regards establishing a legal interest to intervene, such hostility in no way diminishes the case put up by FUL. Paradoxically, the reality of a long-standing adversarial involvement in this controversy about the alleged misconduct of Hlophe JP enhances FUL’s case for intervention,” he said. 

He said it was common cause that FUL had for over a decade “devoted no little energy” to get the relevant organs of state to investigate and discipline Hlophe. Its investment in the case was plain. 

“Moreover, by taking the initiative to seek a review of the decision by the JSC in 2009 to decline to institute a disciplinary enquiry, FUL established the very foundation for the chain of events culminating in the 2021 decision of the JSC,” Sutherland added.

It was to be left to the review to determine whether the JSC’s decision was lawful and FUL’s stance was defensible, he said. 

The court also set aside Hlophe’s application to have FUL’s replying affidavit in the matter set aside. His argument was that it did not comply with Rule 18 of the Uniform Rules of Court because FUL’s counsel failed to respond with sufficient specificity to his own answering affidavit.

He was prejudiced, Hlophe contended, by the absence of a point-by-point reply.

But the court found that this was “wholly unsubstantiated” and that he was misplaced in citing case law to argue that Rule 18 applied to affidavits in motion proceedings when in fact it pertained strictly to pleadings.

“Accordingly, as the sole rationale upon which the Rule 30 application was brought is invalid, it follows that the application to set aside the replying affidavit must be dismissed,” the court ruled.

The ruling came a fortnight after the application was heard, in line with a commitment from the bench to speedily decide what it termed “another chapter in a protracted controversy”.

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