ConCourt rejects its own judges’ application on Judge Hlophe matter

24 August 2016 - 13:24 By Ernest Mabuza
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It is in the interests of justice that the complaint against Western Cape Judge President John Hlophe should be dealt with and concluded without further delay.

Western Cape Judge President John Hlophe
Western Cape Judge President John Hlophe
Image: GALLO IMAGES

“The events that gave rise to the complaint occurred in 2008. Eight years later‚ the matter has not been finalised. It is in the interests of justice that this matter be brought to finality‚” said Chief Justice Mogoeng Mogoeng on Wednesday.

Mogoeng made these remarks as the court dismissed an application by Constitutional Court Justices Bess Nkabinde and Chris Jafta‚ who asked the court to rescind a judgment the court passed on May 16.

Nkabinde and Jafta were among the 11 Constitutional Court justices who‚ in 2008‚ accused Hlophe of trying to influence the outcome of cases involving President Jacob Zuma.

They alleged that Hlophe had improperly tried to influence the outcome of judgments connected to corruption charges against President Jacob Zuma.

When the tribunal was about to conduct a formal hearing against Hlophe in 2013‚ Nkabinde and Jafta - who were supposed to be the key witnesses - raised challenges against the tribunal’s constitutionality.

After the full bench of the High Court dismissed the judges' application in 2014‚ the Supreme Court of Appeal also dismissed their appeal against the High Court judgment earlier this year.

The judges then approached the Constitutional Court this year.

In the May judgment‚ the Constitutional Court dismissed the two judges’ application because a number of its members were disqualified from adjudicating the matter and there would be no quorum of eight judges to hear the matter.

Former Deputy Chief Justice Dikgang Moseneke was a complainant‚ Justice Mbuyiseli Madlanga was a counsel for Nkabinde and Jafta against Hlophe‚ and Mogoeng and Justice Ray Zondo took part in efforts to mediate the dispute between the complainants and Hlophe

In their rescission application‚ Nkabinde and Jafta said the court should have raised the issue of the judges’ disqualification with them to enable them to make written submissions before the court could dismiss their application.

Nkabinde and Jafta said that‚ although the Constitutional Court said some of its members were disqualified‚ they nonetheless took part in the decision to dismiss their application.

In its judgment on Wednesday‚ the court rejected the arguments advanced by Nkabinde and Jafta.

“Rule 19(6) of our Rules … makes it clear that‚ when this Court deals with applications for leave to appeal‚ it may do so summarily and without oral argument or additional written submissions.

“The applicants are familiar with this procedure‚” the court comprising of nine judges said in its written judgment.

The court said even now‚ after it had been joined by two acting judges‚ the court would still have no quorum to deal with the two judges’ rescission application or appeal if it were to exclude the colleagues who had been disqualified.

The court said the two judges’ complaint against the Judicial Services Commission had been heard by no fewer than 10 judges.

“It was heard by two judges‚ who are members of the Tribunal‚ plus another member who is not a judge. It was then heard by three judges who constituted the Full Bench (of the High Court in Johannesburg).

“Thereafter it was heard by five judges of the Supreme Court of Appeal. All these judges considered their complaint and dismissed it.”

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