THE only "lawful course" open to the Judicial Service Commission (JSC) in its handling of the gross misconduct allegations against Western Cape Judge President John Hlophe is a formal misconduct tribunal, say written submissions to a JSC subcommittee.
The "Hlophe saga" will enter a new phase on Monday, when the JSC's judicial conduct committee will meet to consider afresh the 2008 complaint made by all the then justices of the Constitutional Court that the judge president improperly sought to influence the outcome of judgments, then pending before their court, in cases connected to corruption charges against President Jacob Zuma.
A formal tribunal hearing, with cross-examination, is viewed by some as the only way to get to the bottom of what happened when Judge Hlophe twice visited judges at the Constitutional Court in 2008 and to finally lay to rest the ugly judicial dispute that followed. Others think this will only further damage the judiciary's already battered integrity.
The JSC, after eschewing a formal inquiry and clearing Judge Hlophe in 2009, was last year sent back to the drawing board by the Supreme Court of Appeal, which set aside its ruling as irrational.
The JSC then said the complaint would be dealt with in terms of the new procedure established by a recent amendment to the Judicial Service Commission Act.
Under the amendment, the judicial conduct committee must decide if there is a prima facie case of gross misconduct and whether to recommend that the JSC establish a judicial conduct tribunal to look into the complaint.
But in submissions for the Constitutional Court justices, their counsel, Gilbert Marcus SC, said the Supreme Court of Appeal's findings gave the committee no other option. "These findings effectively determine the JSC's obligations ... a recommendation that the matter be investigated by a tribunal is the only lawful course," said Mr Marcus.
Thabani Masuku, counsel for Judge Hlophe, said he would never get a fair hearing at a tribunal - given the protracted history of the dispute and the number of "serious blunders" by the JSC.
Also on the committee's Monday agenda is the complaint by Freedom Under Law over Judge Hlophe's "scandalous accusations" against the justices in his response to their complaint.
The body's counsel, Tim Bruinders SC, said Judge Hlophe's response - that the justices were "untruthful, malicious, and vindictive and that their actions were politically motivated" - itself amounted to gross misconduct.