SCA dismisses appeal by two Constitutional Court judges on Hlophe tribunal
by Ernest Mabuza,
2016-03-10 19:49:14.0
THE Supreme Court of Appeal (SCA) on Thursday dismissed an appeal by two justices of the Constitutional Court, who had expressed concern about the legality of a tribunal investigating Western Cape Judge President John Hlophe.
The judgment means the Judicial Conduct Tribunal can continue with its investigation into the complaints of misconduct against Judge Hlophe.
Justice Bess Nkabinde and then Acting Justice Chris Jafta were among 11 Constitutional Court justices who in 2008 accused Judge Hlophe of trying to influence the outcome of cases involving President Jacob Zuma.
When the Judicial Conduct Tribunal was about to begin its work in 2013‚ Justices Nkabinde and Jafta raised preliminary challenges against the tribunal’s constitutionality.
Their main argument was that there was no valid complaint before the tribunal that could be investigated. They also said they were under no obligation to attend the hearing unless there were a complaint under oath as required by the Judicial Service Commission (JSC) Amendment Act.
At the time that the complaint by the 11 justices of the Constitutional Court was lodged in terms of the JSC rules then in force‚ it was not necessary for it to have been on oath.
When the tribunal chairman‚ retired Judge Joop Labuschagne‚ provided reasons the tribunal should proceed‚ Justices Nkabinde and Jafta reviewed his decision in the High Court in Johannesburg.
The full bench of the court dismissed their application in 2014‚ saying that there were no vested substantive rights that had been impaired by the application of the new disciplinary procedures, which would justify the view that the tribunal should not proceed.
The application for leave to appeal was refused by the High Court and the justices petitioned the SCA.
In his judgment on Thursday‚ SCA Justice Mahomed Navsa said in any event‚ it was not contested that in the litigation in the present case‚ the complaint had been confirmed on affidavit.
Justice Navsa said even if one were to take the view that a complaint under oath was required in order for the JSC to conduct a preliminary inquiry and to establish the Tribunal‚ there had been substantial compliance with this requirement.
Justice Navsa said the considerable delay in the finalisation of the complaint in a matter which was of crucial and national importance did the judiciary great harm.
Justice Navsa said Nkabinde and Jafta also asserted they were willing to testify and be cross-examined.
"Against all of these assertions it was unsettling when counsel on behalf of the appellants (Justices Nkabinde and Jafta)‚ with emphatic certainty‚ stated during submissions before us that this matter would never end‚ speculating without specificity that there would be ongoing challenges to proceedings related to the complaint."
Justice Navsa said the judicial image in SA could not afford to be further tarnished in this manner.
"There should be a concerted effort and determination on the part of everyone concerned for the matter finally to be put to rest. It should be dealt with and finalised with all deliberate speed‚ with due regard to the rights of all concerned‚" Justice Navsa said.
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John Hlophe. Picture: SUNDAY TIMES
THE Supreme Court of Appeal (SCA) on Thursday dismissed an appeal by two justices of the Constitutional Court, who had expressed concern about the legality of a tribunal investigating Western Cape Judge President John Hlophe.
The judgment means the Judicial Conduct Tribunal can continue with its investigation into the complaints of misconduct against Judge Hlophe.
Justice Bess Nkabinde and then Acting Justice Chris Jafta were among 11 Constitutional Court justices who in 2008 accused Judge Hlophe of trying to influence the outcome of cases involving President Jacob Zuma.
When the Judicial Conduct Tribunal was about to begin its work in 2013‚ Justices Nkabinde and Jafta raised preliminary challenges against the tribunal’s constitutionality.
Their main argument was that there was no valid complaint before the tribunal that could be investigated. They also said they were under no obligation to attend the hearing unless there were a complaint under oath as required by the Judicial Service Commission (JSC) Amendment Act.
At the time that the complaint by the 11 justices of the Constitutional Court was lodged in terms of the JSC rules then in force‚ it was not necessary for it to have been on oath.
When the tribunal chairman‚ retired Judge Joop Labuschagne‚ provided reasons the tribunal should proceed‚ Justices Nkabinde and Jafta reviewed his decision in the High Court in Johannesburg.
The full bench of the court dismissed their application in 2014‚ saying that there were no vested substantive rights that had been impaired by the application of the new disciplinary procedures, which would justify the view that the tribunal should not proceed.
The application for leave to appeal was refused by the High Court and the justices petitioned the SCA.
In his judgment on Thursday‚ SCA Justice Mahomed Navsa said in any event‚ it was not contested that in the litigation in the present case‚ the complaint had been confirmed on affidavit.
Justice Navsa said even if one were to take the view that a complaint under oath was required in order for the JSC to conduct a preliminary inquiry and to establish the Tribunal‚ there had been substantial compliance with this requirement.
Justice Navsa said the considerable delay in the finalisation of the complaint in a matter which was of crucial and national importance did the judiciary great harm.
Justice Navsa said Nkabinde and Jafta also asserted they were willing to testify and be cross-examined.
"Against all of these assertions it was unsettling when counsel on behalf of the appellants (Justices Nkabinde and Jafta)‚ with emphatic certainty‚ stated during submissions before us that this matter would never end‚ speculating without specificity that there would be ongoing challenges to proceedings related to the complaint."
Justice Navsa said the judicial image in SA could not afford to be further tarnished in this manner.
"There should be a concerted effort and determination on the part of everyone concerned for the matter finally to be put to rest. It should be dealt with and finalised with all deliberate speed‚ with due regard to the rights of all concerned‚" Justice Navsa said.
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