Western Cape Judge President John Hlope
Picture: Puxley Makgatho

THE Supreme Court of Appeal will hear an appeal application by two Constitutional Court justices, challenging the lawfulness of a disciplinary process against Western Cape Judge President John Hlophe.

The case, in which the appeal application will be heard next month, is extraordinary in several respects. In 2013, justices Bess Nkabinde and Chris Jafta were meant to be the principal witnesses against Judge Hlophe at a Judicial Conduct Tribunal hearing.

In an apparent U-turn that surprised the legal community, the two justices challenged the lawfulness of the process.

Judicial conduct tribunals investigate possible impeachable conduct by judges and make recommendations to the Judicial Service Commission (JSC).

They lost their argument at the tribunal and in the High Court in Johannesburg, which also refused them leave to appeal, saying it saw no prospect of success.

The Supreme Court of Appeal has not granted leave to appeal, but has said it would hear oral argument on whether it should entertain the appeal.

The justices’ case has meant that at least four other judicial conduct tribunals have had to be put on hold. This has been continuing since October 2013, when justices Nkabinde and Jafta approached the High Court.

Justices Nkabinde’s and Jafta’s case has further delayed the resolution of the misconduct complaint against Judge Hlophe, which has dragged on since 2008. The complaint is that Judge Hlophe improperly sought to influence the outcome of four cases that at the time were pending before the Constitutional Court.

The cases were all related to then pending corruption charges against President Jacob Zuma before he became president. It was widely thought that the outcome of the cases would have been decisive in his presidential prospects.

In heads of argument, their counsel, Bantubonke Tokota SC, blames the JSC for the "chaotic and unconstitutional manner"*2 in which the complaint was dealt with. "It has been going on for far too long, from 2008 up to now, and yet it does not seem like we are near the end, due to a (comedy) of errors, we submit, committed by the JSC."

Mr Tokota said the way the JSC dealt with the matter had "confused, frustrated and inconvenienced the applicants, who must have now lost all interest in the matter*1, although they are still prepared to go and testify".

The justices have insisted that they were not making a U-turn and were prepared to testify if the process was conducted properly.

But Mr Tokota said the Supreme Court of Appeal should reverse the High Court’s order "and put an end to this matter".

The justices are challenging the tribunal on a number of grounds including that it is a breach of the separation of powers for a member of the National Prosecuting Authority to be brought in as a pro forma prosecutor. They also say that the disciplinary process used, as set out in an amendment to the JSC Act, was wrong because the complaint was made before the amendment coming into effect.

But in the JSC’s heads of argument, counsel Hamilton Maenetje SC, says the justices’ arguments are without merit. "There are no prospects of another court coming to a different conclusion (to the High Court)," he says.

The case is set down for February 15 and will be heard by justices Mahomed Navsa, Carole Lewis, Eric Leach, Ronnie Pillay and Kevin Swain.

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• Ruling paves way for conduct tribunal to investigate Judge Hlophe

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*1 No wonder they have lost all interest in the matter.

It is a matter of fait accompli, or should one say: mission accomplished?

*2 So strange (?).

So de ja vu.

I won a kind of related case against the Friends of Jacob Zuma Trust.

It is related because it also involves the Arms Deal.

I won R270 000 plus costs in a judgment given in November 2013.

But the defendants took this on appeal to a full bench of the Cape Town High Court.

Despite our efforts chaotic and unconstitutional manners have intervened and this simple appeal is still nowhere on the radar screen.

But unlike Their Lordships, I haven't lost complete interest in it because although Number One has substantially cocked up the value of the Rand in the interim, there is interest thereon ticking over at a very pleasant prescribed rate of 15,5% per annum from date of judgment to date of payment.

Even though it is simple interest and not compound interest, it's better than when can do at Standard Bank these days.

But I think that I would have preferred to get the money and invested it in United States Dollars.

Maar so gaan die lewe.

Miskien die hele lewe sal verby wees voordat ek nog 'n dag in die hof kan kry

Behalwe om die geld regtig in the sak te sit.

RMY