Hlophe Warns of 'Arrogant' Judges [Cape Times, 2008-10-30]

Publication	Cape Times
Date	2008-10-30
Reporter	Angela Quintal
Web Link	www.capetimes.co.za

Western Cape Judge President John Hlophe wants to appeal to the highest court in the land - but there could well be no one there to hear it.

Constitutional Court judges are embroiled in a legal battle against him and cannot be judges in their own case.

Hlophe on Friday filed papers in the Johannesburg High Court opposing an application by 11 Constitutional Court judges and two acting judges for leave to appeal to the Supreme Court of Appeal.

Significantly, he also gave notice that he would file his own cross-appeal, but to the Constitutional Court itself and not the SCA, if the judges were successful in their application.

It would state, among other things, that the Johannesburg High Court had erred by not finding that the nation's top judges were guilty of gross judicial misconduct - a constitutional ground for removal from office.

Should the cross-appeal go ahead, it would be unprecedented in legal history, given that all the judges, including Chief Justice Pius Langa and his deputy Dikgang Moseneke, would have to recuse themselves.

The Constitution states that a matter before the 11-member court must be heard by at least eight judges and presumably an equivalent number of acting judges would have to be appointed especially to hear the case.

The latest development follows last month's application by the Concourt judges for leave to appeal against part of the Johannesburg High Court's majority judgment, which found that they - the country's top judges - had violated Hlophe's constitutional rights.

The 13 - including two acting judges who were on the Bench at the time Hlophe is alleged to have tried to improperly influence the court in favour of ANC president Jacob Zuma - argued that that the majority finding was not justified in law and was contradictory.

The High Court judgment is already being used by Hlophe to claim R10-million from the judges for damaging his "dignity and reputation".

Moreover, the judges' complaint of gross judicial misconduct against Hlophe - as well as his counter-complaint - have both been put on hold by the Judicial Service Commission, pending the finalisation of the court processes.

In his 27-page notice of opposition, as well as notice of a cross-appeal, Hlophe said it was in the public interest that the JSC complaints were speedily concluded.

An appeal to the SCA - which was not the final court in constitutional matters - would delay the finalisation of the matter by the JSC.

It would also generate "unnecessary costs" to be ultimately borne by the taxpayer, Hlophe said.

There was also a strong possibility that a party to the appeal who felt aggrieved by the SCA decision would appeal further to the Constitutional Court.

He for one would not waive his right to have the issue of the violation of his constitutional rights determined by the highest court in such matters, Judge Hlophe said.

He also argued that the respondent judges had not made out a case for leave to be granted.

In arguing why this was the case, Hlophe said the judges' arguments bordered on contempt for the High Court and "displays astonishing arrogance".

He also said some of the reasoning in their application was "flawed" and "improperly patronising".

Moreover, it was unlikely that another court would come to a different conclusion reached by the majority of the five-member High Court.

But Hlophe said he would only cross-appeal in the event that the Johannesburg High Court granted the judges leave to appeal.

The grounds would include that the High Court had erred by not finding that the judges had violated the judicial authority of the Constitutional Court.

The court should also have found that the judges abused the name and the resources of the Constitutional Court in a manner that violated the judicial authority and the integrity of the court.

This was done to pursue a private complaint against him "on the back of untested allegations through a media publication", Hlophe said.

It should also have found that the conduct of the judges exposed the judiciary to negative public criticism that undermined the Constitutional Court's integrity and independence.

"Having found that the respondent judges have unjustifiably infringed the applicant's right to human dignity, equality and fair hearing, and that their publication of untested allegations of gross misconduct against the applicant on the basis of ex-parte representations by two of their number was unlawful, the Honourable Court erred in finding that the respondents' conduct nevertheless does not necessarily constitute gross judicial misconduct and that such a finding must still be made by the JSC," Hlophe argued.

In his founding affidavit in July, Hlophe said he believed that under normal circumstances a lower court should not be placed in a position where it had to decide the constitutionality of actions by judges of the Constitutional Court.

Dealing with the possibility that the Johannesburg High Court might choose to refer the matter to the Constitutional Court, he said it was "plain that the current judges of the Constitutional Court cannot be expected to determine the issue without partiality and prejudice as required of them by the Constitution".

"It is my respectful submission that the recusal of the Constitutional Court judges would be unprecedented. I would have not court to hear my application unless it is constitutionally and legislatively possible."

However, the Constitution allowed for acting judges to be appointed in the event of a vacancy arising.

"There is no precedent for this. But then again, there is no precedent of all Constitutional Court judges, as a court, being complainants and respondents in a matter involving the breach of constitutional rights," Hlophe's founding affidavit stated.

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