Legalbrief | your legal news hub Thursday 30 September 2021 Hlophe tribunal on brink of collapse? SA's first tribunal with the power to recommend the removal of a judge from office appears to be on the brink of collapse, notes Legalbrief. Five years after Constitutional Court judges first lodged a misconduct complaint against Western Cape Judge President John Hlophe, the JSC's Judicial Conduct Tribunal is to decide tomorrow whether it considers itself 'legitimate'. A City Press report noted yesterday's adjournment of the hearing comes after lawyers representing the two justices of the Constitutional Court at the centre of the matter argued that they have a 'right not to testify before an illegitimate structure'. Selby Mbenenge SC, who is representing Justices Chris Jafta and Bess Nkabinde, the two Hlophe allegedly tried to influence in favour of President Jacob Zuma, said that the tribunal should not even be postponed; it should just 'pack up and go'. Mbenenge has argued on behalf of the two justices that the rules which apply to the proceedings are those which were in force before the Judicial Service Commission (JSC) Act was amended in 2010. The JSC Act required that the rules be published in the Government Gazette by the Minister of Justice, which was never done. For this reason, argues Mbenenge, the tribunal - appointed in terms of the amended legislation - is 'not a properly appointed structure'. According to the report, Mbenenge has argued that if he is wrong, and the new rules apply, they will then rely on an argument advanced by Hlophe's legal team on Monday that the JSC has since last year dealt with this matter under the new Act. The amended Act requires a complaint against a judge to be contained in an affidavit or affirmed statement. Full City Press report Mbenenge argued that the legal framework applicable to the impugned complaint was the one applicable on 30 May 2008, before the JSC Act was amended, notes a Business Day report. He underlined the point that the Minister of Justice's failure to publish the particulars of the procedure - through a notice in the Government Gazette - was fatal to the tribunal's legitimacy because the rules governing it were invalid. 'This tribunal is not a properly appointed structure as the rules applicable to these proceedings make no provision for its creation,' Business Day quotes him as saying. Gilbert Marcus SC, for the other judges of the Constitutional Court, said the JSC's power to make rules was conferred to it by the Constitution. He said the non-publication of the rules as required by the JSC Act could not invalidate a power conferred by the Constitution. Thabani Masuku, another counsel for Hlophe, asked the tribunal to make a recommendation to the commission that judges ought to be protected from incurring costs defending themselves from allegations of misconduct. Full Business Day report (subscription needed) See also a report on the News24 site The decision by Nkabinde and Jafta had made the case against Hlophe 'difficult' to pursue, according to a report in The Mercury that quotes a source it claims to be close to Marcus' team. During the hearing yesterday Marcus said that 'everybody' had accepted since July 2008 that the proceedings were conducted in accordance with a set of rules that were made in terms of relevant legislation. 'What we are concerned about is whether or not the initiating complaint in May and June 2008 is valid or not. We submit... that there is no basis upon which section 14 of the Act, which only came into force on the first of June 2010, can be held to apply retrospectively to completed transactions.' Full report in The Mercury (subscription needed).