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Hlophe Tribunal Still on Shaky Ground Legalbrief | your legal news hub Saturday 02 October 2021 Hlophe tribunal still on shaky ground Despite Judge Joop Labuschagne's ruling yesterday that there was a valid complaint against Western Cape Judge President John Hlophe and that the JSC's Judicial Conduct Tribunal probing the allegations of gross misconduct against him should proceed without delay, the tribunal's future nevertheless remains uncertain, writes Legalbrief. A Business Day report says that while Hlophe was anxious for the tribunal to go ahead, it remained on shaky ground due to uncertainty whether the main witnesses, Constitutional Court Justices Bess Nkabinde and Chris Jafta, would be present when it continues on Tuesday. Their advocate, Selby Mbenenge SC, asked for a postponement to consult them. The complaint against Hlophe dates back to May 2008 when Constitutional Court judges issued a statement alleging that he had approached Nkabinde and Jafta in an 'improper attempt' to influence the court's pending judgment in four cases involving ANC president Jacob Zuma and French arms company Thint. Nkabinde and Jafta issued a statement distancing themselves from the complaint, saying: 'We wish to state that we have not lodged a complaint and do not intend to lodge one and consequently, we are not 'complainant judges'.' However, a document of complaint submitted to the commission a few days later detailing their allegations was submitted by Chief Justice Pius Langa on behalf of 13 judges of the Constitutional Court, notes the report. Hlophe's attorney Barnabas Xulu reportedly told the newspaper that the testimony of Deputy Chief Justice Dikgang Moseneke was critical to understand how the initial complaint against Hlophe came to be lodged. Full Business Day report (subscription needed) Courtenay Griffiths QC, for Hlophe, accused Moseneke of dragging his feet over the complaint against his client. This is according to a City Press report, which says Griffiths was pushing for the tribunal hearing to proceed immediately. According to the report, Griffiths insisted that Gilbert Marcus SC, who is representing the other complainant justices of the Constitutional Court, including Moseneke, immediately make available minutes of meetings which occurred between the justices of the Constitutional Court at the time of the complaint. 'The learned Deputy Chief Justice has had five years to get his act together,' said Griffiths. The report notes the evidence Griffiths is referring to are minutes of meetings that took place between Nkabinde and Jafta saying they did not want to proceed with a complaint against Hlophe and their subsequent inclusion as co-complaints with other members of the Constitutional Court. Full City Press report See also a report on the News24 site In dismissing the objections raised on behalf of Nkabinde, Jafta and Hlophe, Labuschagne said the full reasons for the decision would be outlined in the tribunal report that would be given to the JSC. Jafta and Nkabinde had argued that the tribunal's legitimacy was at stake because the rules governing it were invalid, notes a report on the IoL site. Mbenenge contended the rules of the tribunal were also invalid because they were not published in the Government Gazette by the Minister of Justice, in terms of the unamended JSC Act. Mbenenge said he wanted reasons for the tribunal's decision to proceed, but Labuschagne said he would not be rushed into providing reasons, citing the inevitability of a court review of the tribunal's findings. Full report on the IoL site How the matter will proceed is outlined in a report in The Mercury. In the event Hlophe is found guilty of gross misconduct, the final say on his fate will lie in the hands of the National Assembly.In terms of the JSC Amendment Act, once the judicial conduct tribunal probing allegations of gross misconduct has completed its task, it would be required to submit a report of its findings to the JSC.Commission secretariat Sello Chiloane said the JSC would then schedule a meeting, before which Hlophe would have a chance to make representations in light of the report. At the meeting, the JSC would make a decision as to whether it was satisfied with the tribunal's findings, as well as whether Hlophe was indeed guilty of gross misconduct. If this were the case, the matter would be referred to the National Assembly, which would make the actual decision as to his impeachment. If Hlophe was vindicated, however, that would be the end of the matter. Full report in The Mercury (subscription needed).
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