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JSC Rejects Hlophe Bid for Recusal of Five Members

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Legalbrief | your legal news hub Thursday 30 September 2021 JSC rejects Hlophe bid for recusal of five members The Judicial Service Commission (JSC) will for the first time hold an inquiry that could be the prelude to the impeachment of a judge, after it rejected a request that five of its members should recuse themselves, says a report in the The Sunday Independent. The JSC, which met at the weekend to consider the complaints by the Constitutional Court and Cape Judge President John Hlophe, found that in view of the 'conflict of fact' on papers before it, oral evidence would be required from both sides. The report quotes an unnamed leading senior counsel as saying: 'The inquiry that is going to be held is of huge importance. If this matter is proved, it is difficult to imagine anything more serious.' The request for recusal by counsel for Hlophe was based on concerns that he would not get a fair hearing because last year the five had felt the Judge President should face a gross misconduct inquiry relating to his 'moonlighting' for the Oasis group of companies. At the time, during the Oasis matter, the JSC had been split largely on racial lines, and it was Chief Justice Pius Langa who cast the deciding vote that saw Hlophe escape an inquiry that could have led to his impeachment. According to a report on the News24 site, JSC spokesperson Marumo Moerane said both parties made presentations regarding the future conduct of the matter. He said notice of the date and venue of the oral hearing would be made known once arrangements had been finalised. Full report on the News24 site Full report in The Sunday Independent The decision to seek oral testimony on Hlophe's complaints creates the impression that the judges are in a position of having to defend themselves, says emeritus law Professor Marinus Wiechers in a report in Beeld. However, 'this doesn't mean the JSC is saying Hlophe's accusations are grounded,' Wiechers added. The report notes that the hearing will be the first time that the highest court has had to defend itself in an oral trial. Full Beeld report French arms manufacturer Thint expressed 'deep concern' about the complaint against Hlophe on Friday. A Beeld report notes Advocate Norman Arendse SC, on behalf of Thint, said in response to Chief Justice Pius Langa's invitation to all parties involved to file if they had concerns about his court's dispute with Hlophe that Thint definitely did not give Hlophe a mandate to approach the judges and that the company never had contact with Hlophe. Thint is also concerned that the allegations were made only a month after the conversation between Hlophe and the judges. According to a report in The Times, the arms firm also questioned the way in which the judges made their complaint about Hlophe. 'There is nothing in the court's narrative that suggests that the matter of Hlophe's alleged attempt to influence could not have been dealt with by way of ordinary contempt of court proceeding, and a subsequent - or even simultaneous - complaint to the JSC. 'In this way, the integrity of the court would be preserved and the administration of justice served in an appropriate way,' the arms company said. Full Beeld report Full report in The Times Zuma will not be making a formal submission to the Constitutional Court regarding his concerns relating to the stand-off between the court and Hlophe, says a report on the IoL site. Zuma's attorney Michael Hulley said on Friday he had elected not to make any submissions to the Constitutional Court. Subsequent to the accusation that Hlophe had tried to influence two of the court's judges, Hulley wrote a letter to the court, raising concern that the matter might influence the court's deliberations on Zuma's appeal. As a result of the letter, Chief Justice Pius Langa asked the NPA and Zuma for their submissions on the Hlophe stand-off. The NPA responded by saying 'these matters need not and should not affect the Constitutional Court's determination of the present applications or the (Zuma) judgments that have been reserved.' Full report on the IoL site Hlophe is fighting his case in the court of public opinion, according to a Saturday Star commentary. It says the Hlophe strategy appears similar to Jacob Zuma's, where the fight is played not only through official channels but in the court of public opinion. It is one where both men - should they ultimately choose to question whether they can get a fair trial or hearing - will have more than ample popular support. Given that the JSC will decide merely whether there is an impeachment inquiry to pursue, it could conceivably decide in the national interest that the country cannot afford this spectacle, says the commentary It could then reject both complaints - finding there was not a prima facie case of gross misconduct - and then deal with rebuilding a shattered institution. Full Saturday Star commentary(subscription needed) A Mail & Guardian Online commentary offers a different opinion. It says the strategy that clearly emerges from the response of Hlophe to the complaint laid against him is one of divide and rule. It points out that in his answering affidavit to the JSC, the embattled Hlophe paints a picture of a court in disarray. According to him, Constitution Hill in Johannesburg is mired in plotting, bullying and racism. A key theme of his 71-page submission is his attempt to isolate the court's two most senior judges, Chief Justice Pius Langa and his deputy, Dikgang Moseneke, as the key plotters against him. He argues that they strong-armed the two judges central to the complaint, Bess Nkabinde and Chris Jafta, into making statements against their will about their meetings with Hlophe, with ulterior motives. Full Mail & Guardian Online commentary Hlophe's reasoning that Langa (and Moseneke) want to impeach him are questioned by leading legal commentator Carmel Rickard in a column in The Weekender. Rickard recalls that Hlophe recently managed to avoid an investigation by the JSC concerning his allegedly unsavoury behaviour in relation to a company that was paying him, effectively, a salary, and the fact that he appeared to be favouring that company by giving them permission to sue a fellow judge (without disclosing his interest or recusing himself). These were serious allegations, Rickard writes, but the JSC decided by a majority of just one vote not to pursue its investigation. That one vote came from Langa, the very person now said to be harbouring such a deep-seated, irrational determination to get rid of Hlophe that he would provoke a constitutional crisis to remove him from the ranks of the judiciary without proper cause. These two actions are incompatible, argues Rickard. If Langa were hell-bent on getting rid of Hlophe, he would have voted for the JSC investigation to continue. Full column in The Weekender .
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