SCA upholds appeal by judges against Hlophe
The Supreme Court of Appeal (SCA) on Tuesday upheld an appeal by judges of the Constitutional Court relating to a dispute with Cape Judge President John Hlophe.
The SCA replaced an order of the high court with an order dismissing Hlophe’s application.
The case relates to a complaint of judicial misconduct laid by the Constitutional Court judges against Hlophe with the Judicial Services Commission (JSC) on May 30 2008.
They said Hlophe allegedly made what they regarded as inappropriate approaches to judges about a pending judgment on African National Congress president Jacob Zuma, who was facing graft charges related to a government arms deal.
Hlophe laid a counter-complaint against the judges on June 10 2008.
He launched an application in the High Court in Johannesburg for an order declaring, in essence, that the Constitutional Court had violated certain of his constitutional rights by laying the complaint and by issuing a media release stating that the complaint had been laid.
In Tuesday’s unanimous judgement by a panel of nine judges of the SCA, it held that the justices of the Constitutional Court did not act unlawfully when they made a complaint to the JSC against Hlophe without first affording him an opportunity to be heard.
The SCA also held that Constitutional Court judges did not act unlawfully by issuing a media statement announcing that they had made the complaint.
Earlier, the high court had found that although the justices were not performing judicial functions as a court when they made their decision they were nonetheless obliged to afford Hlophe a hearing before they did so.
The SCA agreed with the finding by the high court that the justices had not made the decision in the performance of the judicial function of the court.
However, it went on to find that there was no requirement in law for a hearing to be afforded before they arrived at their decision to lay a complaint and issue a media statement.
The SCA also held that, once they had decided to make the complaint, the judges were not obliged by law to keep that a secret.
It held that if the assertion against Hlophe were true—a matter the SCA was not called upon to decide—it was clearly to the public benefit that it should be known and its publication would not be unlawful.
“The fact that the respondent is a judge does not give him special rights or special protection. Judges are ordinary citizens. What applies to others applies to them.
“They, too, like government, pressure groups, or other individuals, may not interfere in fact, or attempt to interfere, with the way in which a Judge conducts his or her case and makes his or her decision,” the judgement read.
The SCA pointed out that it would be distressing for a judge to learn in the media that he or she had been accused of misconduct.
The judgement held that the remedies available to a judge in such a case such were to insist upon an speedy disposal of the complaint to clear his or her name and in appropriate cases an action for damages for defamation.
Media bid to have JSC hearings open
Meanwhile, various media houses are taking the JSC to court to force it to hold open hearings on the complaint against Hlophe, the JSC has confirmed.
Spokesperson advocate Marumo Moerane said: “It is an application to set aside our decision to exclude the public.”
The hearings are due to begin on Wednesday and will focus on the complaint by the judges of the Constitutional Court.
Marumo said the reasons for the closed hearings will be presented in the court papers to be submitted when the application begins at 2pm in the High Court in Johannesburg.
The Freedom of Expression Institute, the Democratic Alliance and the African Christian Democratic Party are among groups who want to hearings to be open.—Sapa