Johannesburg - Western Cape Judge President John Hlophe's hearing against the Judicial Service Commission (JSC) continued on Tuesday with opposing lawyers claiming his case was “legally misconceived” and “divorced from facts”.
The virtual sitting of a full bench of the North Gauteng High Court in Johannesburg is hearing arguments this week on the merits of the JSC’s endorsement of a finding of the tribunal that concluded Hlophe was guilty of gross judicial misconduct.
Hlophe was recommended for impeachment processes by Parliament after he was found guilty of improperly trying to influence the decision of two Constitutional Court justices to favour former president Jacob Zuma in the arms deal case.
Hlophe is challenging the 13-year-long process.
His advocate Thabani Masuku argued the JSC had acted unconstitutionally when it voted in favour of him being found guilty of impeachable gross misconduct. He said the JSC failed to apply the correct law when it determined whether the report of the Judicial Conduct Tribunal should be admitted.
His lawyers argued the JSC did not have the final word on whether he committed gross judicial misconduct.
His lawyers said he had a right to present his case to members of the National Assembly so they could appreciate the significance of such an impeachment vote.
Masuku argued the JSC was “no longer a dependable, constitutional institution in relation to this particular matter” and it failed to provide the kind of leadership it must provide in order to ensure that judges who appear before it, charged with serious offences or serious complaints of judicial misconduct, receive lawful attention.
He put it to the court that where it was found the JSC contravened the law either procedurally or substantively, its findings against Hlophe must be reviewed and set aside.
He said that 13 years down the line, “the JSC still cannot get it right”.
Masuku called on the courts to issue a declaratory order in favour of the terms they seek.
“The confidence in the judiciary is constantly eroded when the JSC simply fails to perform its constitutional duties. And in this case, it's clear again, that they did not perform their duties with the diligence that the Constitution requires them to perform those particular duties,” Masuku said.
However, representing the JSC, advocate Tembeka Ngcukaitobi said the JSC arrived at the decision following a “learned and thorough exposition of the facts and law by the tribunal”.
Ngcukaitobi further disputed Hlophe’s argument that the composition of the JSC sitting that decided his fate was unconstitutional.
“Judge Hlophe does not have a valid defence of gross misconduct against him. Let's be frank about that, he doesn't have a valid defence to the charge of gross misconduct against him,” Ngcukaitobi said.
The hearing continues.
Political Bureau