By Lehlohonolo Lehana.
The Judicial Service Commission’s (JSC) finding of gross judicial misconduct against Western Cape judge president John Hlophe should be set aside because it is irrational and unlawful, Hlophe’s advocate Thabani Masuku argued in the Gauteng High Court Monday.
Hlophe was found guilty of gross judicial misconduct — an impeachable offence — for having tried to influence two Constitutional Court judges Chris Jafta and Bess Nkabinde on a pending matter before the court related to former president Jacob Zuma.
Hlophe maintained that this conclusion was untenable because his actions did not amount to gross judicial misconduct as envisaged in section 177, read together with the Judicial Services Commission Act.
Masuku suggested it was reckless for the JSC to find a judge was not deserving of occupying the bench without due care to apply the correct law and standards, because of the trust invested in judges by the public.
This trust is premised on a presumption, on the part of the public and among judges with regard to their peers, that they have wisdom and judicial integrity.
“Without that presumption, judges are vulnerable to attack,” Masuku said; hence, when the JSC erred, the consequences for the judiciary were severe.
Masuku further argued that the JSC was not properly constituted in August when it concurred with the finding of the tribunal and referred the matter to the speaker of parliament.
On bias, Hlophe argues that Justice Sisi Khampepe and Gauteng Judge President Dunstan Mlambo were disqualified from being part of the meeting at which the JSC reached its final decision, because both had made adverse court rulings against him in the winding course of the misconduct complaint.
Regarding Khampepe, he not only contends that it was improper for her to be present, but also that she had no delegation because she was no longer officially acting as head of the judiciary, that role having reverted to Acting Chief Justice Raymond Zondo.
Further, Judge Boissie Mbha of the Supreme Court of Appeal (SCA) lacked the standing to represent the head of the appellate court. An affidavit by SCA Judge President Mandisa Maya failed to put this matter to rest, Masuku added.
“There is no basis on which Justice Mbha’s involvement in the JSC can be saved, “he said.
Michael Donen SC, for friend of the court the Black Lawyers Association, said the only rule against which Hlophe’s conduct could be tested was section 165 of the constitution, which says no one may “interfere with the functioning of the courts”.
Donen distinguished between influencing and interfering, saying that Hlophe’s conduct did not meet the threshold of interfering. It was misconduct, but not gross misconduct, he said. On this he was closely questioned by deputy judge president Roland Sutherland.
Sutherland said the facts before the tribunal were that when Hlophe approached Jafta and Nkabinde, “in both cases, he raised the issue which was critical to the appeal”.
“To his friend [Jafta] he says ‘you are our last hope’ To the stranger [Nkabinde] he has arranged to meet to discuss notionally a point of law, he talks about the members of the Constitutional Court … ‘needing to understand our history’, which is a highly loaded phrase about which we can extrapolate if needs be, but I think all South Africans understand what that means. He refers to his association with ministers of state, and he says the person that is the subject of the appeal is about to become extremely powerful. And certain people are going to lose their jobs,” said Sutherland.
He then asked Donen if the JSC took all these facts and, from them, concluded gross misconduct, on what basis would the high court reject that as irrational?
Donen responded that those facts only led to a finding of misconduct, not gross misconduct. He said there were also other facts, including that Hlophe had never said to Jafta or Nkabinde that they should not apply the law or go against the Constitution.
The case is set down to be heard over five days. On Tuesday, it is expected that the JSC will argue to defend its decision.
Masuku said if Khampepe and Mbha were not lawfully present, the decision taken by the JSC on 25 and 26 August lacked the necessary number of votes.