Meeting today to discuss complaint

The Constitutional Court was to hold an extraordinary meeting today about if and how it can back up its "undue influence" claims against Cape Judge President John Hlophe.

The public holiday assembly comes after two Constitutional Court judges, who Judge Hlophe allegedly tried to lobby for pro-Jacob Zuma rulings, said they never intended to complain against him and would not do so.

While not explicitly denying that Judge Hlophe attempted to influence them, Judge Bess Nkabinde and Acting Judge Chris Jafta revealed that they met Chief Justice Pius Langa and Deputy Judge President Dikgang Moseneke two days before the court made its explosive claims against Judge Hlophe - and were clear that they would not make statements on the matter.

Judge Nkabinde and Judge Jafta said they would not object to the chief justice or his deputy telling the Judicial Service Commission (JSC) about that discussion.

The two judges were not expected to attend today's meeting, a day before the court is expected to advise the JSC on whether it has any evidence supporting its serious allegations of gross misconduct against Judge Hlophe.

Speaking to The Star yesterday, advocate Reggie Tokota SC - who assisted Judge Nkabinde and Judge Jafta to prepare their carefully worded statement to the JSC - questioned media reports that the judges could be subpoenaed to give evidence.

While pointing out that the JSC could not legally compel anyone to testify before it, Tokota said he doubted the judges would refuse to appear before the commission.

"I have not taken any instructions on this issue, but I do not believe that they would refuse to speak to the commission if they were invited to do so.

"The JSC has not asked them to testify and they have not said they would not testify if asked to do so ... so talk of subpoenas appears to be somewhat spiteful."

Counsel for the court, Gilbert Marcus SC, yesterday confirmed that he had met the court's judges about the Judge Hlophe complaint on Friday, but declined to comment on whether Judge Nkabinde or Judge Jafta had attended the meeting.

The judges had until Friday - a deadline they set for themselves - to send details of their complaint to the JSC, but asked for an extension at the last minute.

But, because no extension has yet been arranged, the court's complaint has been left in limbo.

Acting chair of the JSC, Supreme Court of Appeal Judge President Craig Howie, yesterday confirmed that the extension had been requested but said no decision had been made about whether to grant it.

"The commission has not sat on that request. I've just accepted personally that they will get on with it," said Judge Howie, who declined to comment further on the request.

He said, however, he hoped to see something by the start of the working week tomorrow.

Meanwhile, JSC spokesperson advocate Marumo Moerane SC has admitted that he did not know what would happen to the court's complaint if it failed to submit anything by tomorrow.

"If the document they wish to furnish comes on Tuesday, I don't think the JSC can ignore it," Moerane said.

The JSC was due to meet on July 5 to discuss the court's complaint, but is now likely to meet sooner to plan how to deal with both that and Judge Hlophe's own complaint.

Meanwhile, Independent Newspapers reported at the weekend that Judge Hlophe had lodged a 15-page complaint against the Constitutional Court with the JSC, in which he accused it of acting unconstitutionally and threatening the judiciary's independence.

The complaint was lodged before Justices Jafta and Nka-binde's statement to the JSC.

Judge Hlophe suggested that the Constitutional Court was allegedly motivated by "undesirable political consideration", and had jeopardised the very search-and-seizure cases before it relating to ANC president Jacob Zuma and French arms company Thint, which he was alleged to have tried to influence.

Judge Hlophe, who was granted long leave on Wednesday, said the media statement by the Constitutional Court could not be taken lightly, "because in them is the genesis to a very serious process of removing me from the position that I held for almost 14 years".

The way the court had gone ahead, publicising allegations against him in a media statement first, violated Article 17 of the United Nations' Basic Principles on the Independence of the Judiciary, the African Charter on Human and People's Rights, the International Covenant on Civil and Political Rights and "grossly violated" norms in international jurisprudence.

Judge Hlophe quoted Justice Langa, who last year warned against recklessness in criticising the Supreme Court of Appeal, which had incorrectly attributed a "generally corrupt relationship" comment to Judge Hilary Squires in the Schabir Shaik judgment.

Judge Langa had stated that the public had a right to lodge complaints with the JSC.

With acknowledgements to Karyn Maughan, Louise Flanagan, Angela Quintal and The Star.