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Former Western Cape judge president John Hlophe. Picture: TREVOR SAMSON
Former Western Cape judge president John Hlophe. Picture: TREVOR SAMSON

Whatever “feelings of discomfort” the justices of the Constitutional Court may have, these could not supersede their constitutional duties when dealing with the application that would invalidate the impeachment of former Western Cape judge president John Hlophe, his lawyers said in submissions to the apex court this week. 

Hlophe’s legal team was responding to directions from the Constitutional Court asking for submissions on questions raised by the potential disqualification of seven of its justices to hear his application to the highest court.

Shortly before he was impeached in February, Hlophe approached the highest court directly, saying it had exclusive jurisdiction, and asked it to set aside the decision of parliament’s justice portfolio committee to refer Hlophe to the National Assembly for an impeachment vote. But in the absence of an interdict, parliament pressed ahead, and he was impeached by an overwhelming majority.

The Constitutional Court application, however, was still pending. The Constitutional Court then issued directions to the parties, saying that, of its 10 justices then sitting, only three had no potential grounds of recusal. Three judges are not enough to constitute a quorum.

The others were all potentially disqualified for various reasons, which included “allegations of enmity between one justice and the applicant”, being the chairperson of the Judicial Service Commission (a party to the case), having previously adjudicated cases relating to Hlophe, attempting to mediate the original dispute that gave rise to the misconduct complaint for which Hlophe was eventually impeached, and a prior personal friendship with him. No further details were given by the directions.

The directions asked the parties how the court should deal with this situation.

Hlophe’s team, led by Vuyani Ngalwana SC and Thabani Masuku SC, said the stated potential grounds were mostly not sufficient for recusal. The directions were “lacking in detail and are totally insufficient to inform the parties of the grounds for the recusal”. For example, the allegations of enmity did not name the justice involved.

And, while being a member and chair of the JSC may be a sufficient basis for recusal, the constitution “itself envisages that the chief justice would always form part of the JSC”, they said. It was “also not clear that having previously adjudicated cases related to the applicant must automatically result in the recusal of the justices”, they said. 

The directions did not name the cases relating to Hlophe that the Constitutional Court had in mind. But in the DA’s submissions, its lawyers conducted their own research and named cases in which some of the justices now at the Constitutional Court heard and decided various challenges in the 15 of years of litigation about the original misconduct complaint against Hlophe.

Hlophe’s team said the case now before the Constitutional Court did not deal with whether Hlophe was guilty of misconduct but “stands or falls on what the National Assembly did or failed to do in compliance with the constitution.

“The justices’ prior adjudication of cases ‘related to the applicant’ is not decisive and may not rise to the level of a disqualification warranting a recusal.”

But insufficient information had been given to enable Hlophe to know whether he should entertain a reasonable apprehension of bias on their part, they said. 

Hlophe’s team also disputed the assertion about earlier attempts to mediate the dispute — made before in a 2016 judgment of the Constitutional Court, which said chief justice Raymond Zondo and former chief justice Mogoeng Mogoeng had, at a point, taken part in efforts to mediate the dispute that gave rise the complaint against Hlophe.

They said that Hlophe was not aware of these.

“He is only aware of the mediation that was attempted by the late Archbishop [Desmond] Tutu and not one justice ever informed him about such efforts, nor was he contacted by anyone to participate in any such mediation.” 

They argued that should the court, however, decide that there were sufficient grounds for a recusal of enough of its justices that there would not be a quorum, acting judges should be appointed to hear the case. 

This argument was made back in 2012 by Hlophe when he sought to appeal a dispute related to the misconduct complaint to the Constitutional Court. But it was rejected by the Constitutional Court. 

Going back to the court’s earlier approach on appointing acting judges, Hlophe’s team said Hlophe “strongly disagrees with this approach” and that only the Constitutional Court could correct it. They argued it was unnecessary to employ “the doctrine of necessity”. This is a legal doctrine that allows disqualified justices to sit in cases where not to do so would lead to injustice. 

Submissions from the speaker and the justice portfolio committee took a different stance. Adila Hassim SC said some of the grounds raised by the court were “sufficient for recusal”, though in some cases — such as the allegations of enmity — her team was “not privy to the facts” that gave rise to the allegation.

She said on Zondo being the chair of the JSC, “self evidently no person can sit as a judge in their own cause”. Mogoeng had previously recused himself on the same basis, and “we see no basis why the same approach would not apply here.” 

On justices having previously adjudicated cases related to Hlophe, “we respectfully do not have sufficient particularity to make meaningful submissions,” said Hassim.

If the justices sat in cases that dealt with “the issues in this application”, recusal may be appropriate. But if it were “any case related to the applicant”, then recusal would not be appropriate.

“The mere fact that a judge has previously adjudicated matters concerning that party is not a ground for recusal,” she said.

Attempts to mediate and previous friendships with Hlophe were sufficient grounds also — because they had been found to be in the past.

Hassim argued that even if the court were to find there were enough judges who had to recuse themselves to lead to an inquorate court, it should nevertheless entertain and decide the case on the basis of the doctrine of necessity. She argued that acting judges should not be appointed to hear a single case as this would affect judicial independence.

All the political parties in parliament were cited by Hlophe in the application, but only the DA made submissions. The DA’s team, led by Michael Bishop, argued that, based on the information they had, only Zondo would be disqualified from sitting — because the JSC was a party to the dispute. 

On the Constitutional Court justices having adjudicated previous cases involving Hlophe, the DA team researched which cases these could possibly be and concluded that none of these would disqualify the relevant justices. “Judges hear cases involving the same litigants all the time. Judges hear cases that raise similar legal issues that they have previously adjudicated. Judges hear cases that arise from the same set of facts as cases that they previously adjudicated. That reality, without more, is no basis for recusal,” said Bishop. 

On the allegations of friendship or enmity, he said the DA did not know to which judges these potential grounds of recusal referred and did not “wish to guess about issues which may or may not be matters of public record”. 

But if the affected judge believed the full facts could disclose a reasonable apprehension of bias, “then they should disclose all those facts to the parties. They should also indicate whether they believe they are biased or not, or whether their concern is only an apprehension of bias,” he said.

This was what was done in the famous 1999 Sarfu case, where rugby boss Louis Luyt accused five of the then Constitutional Court judges of bias.


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