|
Expert Rules Out Hlophe Appeal |
| Publication |
Cape Argus |
| Date | 2008-10-30 |
| Reporter | Angela Quintal |
|
Web Link |
At least one legal expert believes that Judge John Hlophe's possible appeal to
the Constitutional Court is out of the question.
Writing in his "Constitutionally Speaking" blog, University of the Western Cape
Professor Pierre de Vos said this would not be possible.
This was because judges of the Constitutional Court were parties to the matter
and could not be judges in their own case.
He said the Constitution made clear that at least eight of the 11 judges on the
Constitutional Court had to hear a case.
Moreover, the president may only appoint a woman or a man to be an acting judge
of the Constitutional Court if there is a vacancy or if a judge is absent.
"The appointment must be made on the recommendation of the Minister of Justice
acting with the concurrence of the Chief Justice.
"This means that where all 11 judges recuse themselves it would not be possible
to appoint 11 acting judges to the Constitutional Court as a recusal by all 11
judges would not create a vacancy, nor would the judges be 'absent'.
"They would be sitting in their offices working on their other cases, and would
just have decided that it was inappropriate to hear the case," De Vos said.
Moreover, De Vos said, even any group of acting justices appointed in this way
would be tainted.
They would not be able to hear the case because the Chief Justice - a party to
the case - would have had a hand in their appointment.
Judge Hlophe filed papers in the Johannesburg High court on Friday opposing an
application by the 11 Constitutional Court justices and two acting justices, for
leave to appeal to the Supreme Court of Appeal (SCA).
He also gave notice that he would file his own cross-appeal, but to the
Constitutional Court itself and not the SCA, if the justices were successful in
their application for leave to appeal.
It would state, among other things, that the Johannesburg High Court had erred
by not finding that the nation's top justices 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 justices, including Chief Justice Pius Langa and his deputy
Dikgang Moseneke, would have to recuse themselves.
The justices' complaint of gross judicial misconduct against Judge Hlophe, and
his counter-complaint, have been put on hold by the Judicial Service Commission,
pending the finalisation of the court processes.
In his 27-page notice of opposition, Judge Hlophe argued that the respondent
judges had not made out a case for leave to appeal to be granted.
In his founding affidavit in July, Judge 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 matter might be referred to the
Constitutional Court, he said: "It is my respectful submission that the recusal
of the Constitutional Court judges would be unprecedented.
"I would have no court to hear my application unless it is constitutionally and
legislatively possible"
However, the Constitution allowed for acting justices to be appointed in the
event of a vacancy arising, Judge Hlophe said.
"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," Judge Hlophe's founding
affidavit states.
With acknowledgements to Angela Quintal and Cape Argus.