CONSTITUTIONAL Court justices Bess Nkabinde and Chris Jafta have said in court papers they are not backtracking from a misconduct complaint against Western Cape Judge President John Hlophe. Earlier this month — in what was widely viewed as a dramatic U-turn that confounded the legal fraternity — the two judges told a judicial conduct tribunal, established under an amendment to the Judicial Service Commission Act, that it did not have jurisdiction to deal with their complaint. Their argument was rejected by the tribunal, and they then turned to the South Gauteng High Court, asking it to set aside the establishment of the tribunal. In their affidavits, filed on Friday, the two justices said they wanted to dispel damaging and unhelpful perceptions that they did not wish to testify, or were seeking to delay the resolution of the complaint. Seeking to set the record straight, Justice Nkabinde said their concern was directed at the lawfulness of the forum set up to investigate the complaint. We do not have the slightest problem testifying before a properly constituted structure, she said. Justice Nkabinde said they did not take kindly to the damaging and unhelpful insinuations that we are backtracking on the original complaint. Far from it. Their court action is the latest development in a complaint of judicial misconduct that has eluded finalisation for more than five years, with several stops and starts, and intervening court cases. But the original complaint, made by all the justices of the Constitutional Court at the time, was explosive. The justices alleged that Judge Hlophe had sought to influence the outcome of four pending Constitutional Court judgments involving Jacob Zuma and French arms manufacturer Thint related to corruption charges against Mr Zuma. At the time it was widely believed these cases were what stood between Mr Zuma and his becoming president. Now justices Jafta and Nkabinde — the two whom Judge Hlophe was originally alleged to have approached — want the establishment of the tribunal set aside, saying that the rule of law has been compromised. In their court application they say the tribunal was set up in terms of legislation that was not in force when the original complaint was made in 2008. It was a fundamental principle of the rule of law that legislation applied to things in the future, but not retrospectively, unless clearly indicated otherwise. The establishment of the tribunal was therefore illegal, they said. We cannot be expected to gloss over the fundamental defect in the process by a body whose creation offends the very foundational value of the constitution we, as judges, are expected to uphold, Justice Jafta said in his affidavit. They will also argue that it is unconstitutional for a prosecutor to be appointed as an evidence leader in judicial conduct inquiries as provided for in the act, saying it offends the principles of the separation of powers and judicial independence. It is for these reasons that we had discomfort (at) being interviewed by the evidence leader appointed by the tribunal president, Justice Jafta said. Justice Jafta said the matter had a long, sad history riddled with monumental errors, and that many of the errors were due to incorrect procedures adopted by the Judicial Service Commission, leading to court challenges. By now, one had hoped that the commission would carefully follow relevant procedures in order to avoid yet more challenges, he said. The commission, the president of the tribunal, Judge Joop Labuschagne, and evidence leader Xolisile Khanyile are yet to file their answering papers.
Posted on: Thu, 24 Oct 2013 10:41:59 +0000
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