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Hlophe: Backtrack or face crisis

SELLO S ALCOCK AND NIC DAWES | JOHANNESBURG, SOUTH AFRICA - Jul 25 2008 06:00

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The Constitutional Court must drop its complaint against him or risk creating a constitutional crisis, Cape Judge President John Hlophe has told the Johannesburg High Court.

Alternatively, all 11 judges of the country's highest court must recuse themselves and make way for a "differently constituted" court to deal with the issues surrounding the complaint, Hlophe suggests.

The two potential outcomes are canvassed in Hlophe's application for an interdict preventing the Judicial Service Commission (JSC) from hearing evidence against him in its investigation of whether he sought improperly to influence two constitutional court judges to favour ANC president Jacob Zuma.

The JSC cannot be asked to decide whether to stop the hearings, Hlophe argues in his founding affidavit, because it "is not a judicial institution and cannot make judicial findings of the nature that I am asking for in this application.

"The powers of the JSC are restricted to findings of facts and recommendations to the appropriate authority ... An order or decision issued by a court binds all persons to whom and organs of state to which it applies," the affidavit says.

Hlophe is effectively asking a lower court to make a finding about the conduct of a higher court, something he concedes may be difficult.

"If this honorable court should consider that it would be undesirable of it to inquire into the constitutional conduct of judges of the Constitutional Court acting as a court ... I would ask that a referral be made to the Constitutional Court, differently constituted to consider its conduct in light of the submissions that I make," he says.

"A position in which the judges of the Constitutional Court reconsider their decision to lodge a complaint against me as a court would be unprecedented but would be justifiable in the public interest.

"Such a position would provide the court with an opportunity to review its own decisions in light of the legal submissions that I make without creating a constitutional crisis of the nature that would result if another court would make adverse findings against it."

CONTINUES BELOW

Hlophe goes on to argue, as he has in his submission to the JSC, that the manner in which the Constitutional Court judges handled their complaint violated his rights to due process, dignity and privacy, and that it improperly lodged the complaint "as a court" rather than individuals. If the complaint was improper, the JSC cannot hear it.

Read the documents (PDF)

Hlophe's founding affidavit

Centre for Constitutional Rights submission to JSC

Idasa submission to JSC

Final submissions to JSC

"Whatever the correct position, this is an issue which only a court of law can decide and not the JSC," reads the affidavit.

Nor, he argues, can the Constitutional Court in its current form. "It is plain, with respect, that the current judges of the Constitutional Court cannot be expected to determine the issues I raise in this application without partiality and prejudice as required of them by the Constitution."

If the high court is unwilling to rule on the conduct of a higher court, Hlophe seems to suggest, no court can hear his application unless the "unprecedented" happens and all eleven judges recuse themselves.

"I would have no court to hear my application unless it is constitutionally and legislatively possible," he says.

Asked to comment, constitutional law expert Pierre de Vos said the "reconstitution" of the Constitutional Court in this way is not possible.

"The court has previously found that there cannot be more than three acting judges, so there is just no way that can happen," he said.

The Mail & Guardian, together with the Sunday Times and Independent Newspapers, has asked the JSC to hold the hearing on the Hlophe matter in public. Idasa and the Centre for Constitutional Rights have separately applied for an open hearing

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Comments

Hlophe is just grasping at straws and is just another ANC Cadre who believes he is above the law. He is so obviously guilty as sin as are all his other comrades and the correct legal procedures must take their course, we have had it with the ANC version of law.

Ray Miller on July 25, 2008, 7:11 am

Hlope's pronounciations are starkly similar to that of JZ and the likes of Julius Malema. The future of our judiciary is bleak with the likes of Hlope around.

Marema Makgatho.

Marema Makgatho on July 25, 2008, 11:40 am

Is this 'hlophe' really qualified, or just a primitive divisive idiot??

Porcupine Quill on July 25, 2008, 1:52 pm

It scares me when I about the antics of people like slippery Hlope and our local drunk Motata and I see the way they put themselves above the institutions they represent. These are people that must have integrity and must be looked up to. How will we be able to restore the moral fibre of our country if judges are laughing stock

George Annandale on July 25, 2008, 3:49 pm

Hlophe has to go. He has disgraced himself and the entire legal system. Whoever decided to appoint him to a post way above the level of his competency and fitness ought to go too. Never has "affirmative action" been more cruelly exposed as a recipe for failure than in this case.

Jon Low on July 25, 2008, 10:42 pm

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