John Hlophe. Picture: TREVOR SAMSON
John Hlophe. Picture: TREVOR SAMSON

THE Constitutional Court has dismissed an application for leave to appeal, clearing the way for a judicial conduct tribunal to investigate gross misconduct allegations against Western Cape Judge President John Hlophe.

The complaint against Hlophe has dragged on unresolved since 2008. The highest court’s order also clears the gridlock of pending judicial conduct tribunals against at least five other judges, which could not go ahead.

In 2008, all the then justices of the Constitutional Court complained to the Judicial Service Commission (JSC) that Hlophe had met two of its justices — Justices Chris Jafta and Bess Nkabinde — and tried to influence them in four highly sensitive judgments pending before the highest court.

The judgments all related to corruption charges against President Jacob Zuma. At the time, it was widely believed that these judgments were what stood in the way of Zuma’s ascending to the presidency of SA. But resolution of the complaint against Hlophe was beset with delays, as a result of intervening litigation.

Eventually a judicial conduct tribunal was set up to investigate the complaint in 2013. However Jafta and Nkabinde stunned the legal community when, before it properly got underway, they challenged its lawfulness on a number of grounds.

Their case was dismissed by the tribunal, by the High Court and by the Supreme Court of Appeal (SCA). They then applied to their own court to appeal the SCA’s decision.

In its terse order dismissing their application, the Constitutional Court it was "incapacitated" from hearing the case, because of "conflicts disabling its members from sitting".

If the case were to have been heard, Business Day previously reported that at least four of the justices would not have been able to sit because they would have had to recuse themselves.

The remaining six would not have been enough for a quorum under the Constitution, even with an additional acting judge.

The Constitution holds that every case before it be heard by at least eight judges.

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