John Hlophe. Picture: TREVOR SAMSON
John Hlophe. Picture: TREVOR SAMSON

IT WAS in the interests of justice for the gross misconduct complaint against Western Cape Judge President John Hlophe — now dragging for over eight years — to be concluded without any further delay, the Constitutional Court said in a judgment on Wednesday.

The 2008 complaint against Judge Hlophe by all the then-justices of the Constitutional Court rocked the judiciary and divided the legal fraternity. But despite increasing calls for it to be put to rest, it has remained unresolved, with numerous twists and turns and intervening litigation.

Unless there is yet another twist, Wednesday’s judgment from the highest court clears the way for the Judicial Service Commission to finally resolve the Hlophe complaint and for all the other judicial conduct tribunals — which had ground to a halt because of the litigation — to proceed. Judicial Conduct Tribunals investigate potentially impeachable misconduct and complaints against at least six judges are pending before tribunals.

The Hlophe complaint was made by all the then-justices of the Constitutional Court, who alleged that the Western Cape Judge President had sought to influence the outcome of judgments, at the time pending before the Constitutional Court, that were related to corruption charges against President Jacob Zuma — potentially impeachable conduct. Hlophe denied the allegation.

Wednesday’s judgment related to the latest twist in the ongoing saga — a court case by the two Constitutional Court justices Hlophe was alleged to have approached, Chris Jafta and Bess Nkabinde, in which they challenged the lawfulness of the judicial conduct tribunal established to investigate the complaint.

READ THIS: JSC says judges Bess Nkabinde and Chris Jafta wrong

Jafta and Nkabinde were expected to be the main witnesses against Hlophe at the tribunal. Instead they stunned the legal community when they turned around and challenged its lawfulness. They lost in the High Court and the Supreme Court of Appeal. Still aggrieved, they turned to their own court and applied to appeal.

But their colleagues at the highest court turned them away, saying too many of its justices had a conflict of interest, and a quorate court could not be established. The Constitution requires that a case must be decided by at least eight justices.

In an astonishing first for SA’s highest court, the two then applied for the order to be reversed or "rescinded", saying it was made "in error" and in their absence.

But in a judgment of "the court", nine of its justices said on Wednesday that Jafta and Nkabinde’s rescission application had no merit.

The two justices had complained that their colleagues had decided their application for leave to appeal on the quorum issue but they had not dealt with that in their court papers. But the judgment said "an overwhelming majority" of applications for leave to appeal were decided in judges chambers, without a public hearing.

"This procedure is, obviously, well known to the applicants," said the judgment, adding that the court had treated its two colleagues "in the same way as it would treat any other litigants".

No litigant, including Jafta and Nkabinde, had a right to be present in judges conference when their leave application was decided, said the judgment.

Jafta and Nkabinde knew that there was likely to be an issue around whether there would be a quorum to hear the case, it said. They knew Chief Justice Mogoeng Mogoeng was the chairman of the JSC and that he and Justice Raymond Zondo had, in the past, tried to mediate the dispute with Hlophe. They knew that Justice Mbuyiseli Madlanga had been their counsel during earlier JSC proceedings.

READ THIS: Up to Africa’s lawyers to stop corruption, Mogoeng tells Sadc conference

They also knew that there had been a precedent-setting decision in a similar case previously — in another one of the intervening Hlophe court cases. Knowing all this, they could have addressed these issues in their court papers." They did not do so and cannot now complain," said the judgment.

It said their case had been heard by "no fewer than 10 judges", all of whom had dismissed it.