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

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

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

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 under way, 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 last month — the Constitutional Court — for leave to appeal against the SCA’s decision.

In its order, released on Tuesday, the court said: “In the light of the principle regulating the position where a court is incapacitated because of conflicts disabling its members from sitting to determine the merits of the application‚ as set out in Hlophe v Premier of the Western Cape Province‚ Hlophe v Freedom Under Law and Other‚ the court has decided that the application must be dismissed.”

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 in terms of the Constitution, even with an additional acting judge.

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

In its legal arguments submitted to the Constitutional Court last week, the JSC poured cold water on the two judges’ appeal application, saying it had no prospect of success.

The JSC said it would not be in the interests of justice to grant leave to appeal “where there are no prospects of success”.

Ishmael Semenya SC, representing the JSC, said the SCA’s judgment was correct and there was no prospect of the Constitutional Court reaching a different conclusion. He also took issue with their “attack on the SCA”.

In the application for leave to appeal, Nkabinde said remarks made in the SCA judgment “suggested indirectly that we lack integrity”. But Semenya said that when the judgment spoke of integrity, it was clearly related to the allegations against Hlophe, not to the two justices.

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