NEWS & ANALYSIS

No official complaint against John Hlophe - Barnabas Xulu

Lawyer for Cape JP says necessary affidavit has not been submitted to Judicial Conduct Tribunal (Sept 23)

Re:  Judges of the Constitutional Court//John Hlophe Tribunal

Five years after Judges's of the Constitutional Court publicly sought to humiliate and discredit J.P. Hlophe, it now transpires that there is not even in existence an official complaint which satisfies the requirements of the Judicial Service Commission Act which governs these proceedings.

Thus last week those acting on behalf of Nkabinde and Jafta JJ, filed a notice, with the tribunal established to adjudicate on the matter, to this effect:

"IN THE JUDICIAL CONDUCT TRIBUNAL

(HELD AT JOHANNESBURG)

In the matter between:

JUDICIAL SERVICE COMMISSION - 1st Complainant

CONSTITUTIONAL COURT JUDGES - 2nd Complainant

and

JUDGE PRESIDENT HLOPHE - Respondent

PRE-HEARING NOTICE ON BEHALF OF JUSTICES JAFTA AND NKABINDE

BE PLEASED TAKE NOTICE that on behalf of Justices Nkabinde and Jafta, the following preliminary point will be raised at the hearing of the above matter:

1. In terms of section 14(3) of the Judicial Service Commission Act, 1994 (Act 9 of 1994)

"(3) A complaint must be-

(a)  ...; and

(b) lodged by means of an affidavit or affirmed statement, specifying-

(i) the nature of the complaint; and

(ii) the facts on which the complaint is based."

2.  According to the record furnished to the two Justices no such complaint on oath or affirmation has been availed.

3.  It will accordingly be contended that the jurisdictional fact enabling the above-mentioned Tribunal to perform its functions is lacking.

4.  Consequently, the two Justices, to the extent that they may be required to attend the hearing, will contend that they are under no obligation thereto, unless and until the defect referred to above shall have been cured.

BE PLEASED TO TAKE NOTICE, THEREFORE, THAT at the pre-hearing conference scheduled for tomorrow, Saturday, 21 September 2013, the Justices will require the parties hereto to admit that the requisite complaint is lacking, with the result that the Judicial Conduct Tribunal may not entertain the matter.

DATED AT JOHANNESBURG THIS 20th DAY OF SEPTEMBER 2013."

We commend these judges for their independence and sense of legal propriety, in that, recognizing the importance and gravity of the issues raised in these proceedings, they have adopted this principled position regarding what they evidently believe is a significant legal issue.

Nonetheless it is a matter of grave concern that the judge's who allegedly began this process now recognize, as we do, that there is a very serious procedural flaw in the way in which the Judicial Service Committee has gone about conducting these proceedings.

The questions now are simply these:

1. Where is the official complaint, which can solely render these proceedings legitimate?

2. Who are the complainants?

These paramount questions will de decided at the outset , when the hearing begins next Monday 30th September.

Now some may claim that the raising of this issue at this time is an attempt by JP Hlophe's legal team to further delay these proceedings.  Nothing could be further from the truth:

1. This issue was raised with the Judicial Conduct Committee as long ago as July 2012, yet nothing was done during the intervening period to address this issue.

2. JP Hlophe has continued to discharge his important and onerous judicial functions for five years with this sinister cloud of uncertainty hanging over his head.  He is most anxious for this issue to be brought to an end, as he recognizes that this prolonged episode does not reflect well on the reputation of the senior judiciary in South Africa, and the potential consequences if the credibility of Judges of the highest court in the land is publicly called into question.

Bearing the importance of these issues and the implications for local advocates if they were called upon to be publicly critical of senior judge's before whom they may have to appear in the future, JP Hlophe is happy to be represented by Courtenay Griffiths Q.C. of the Bar of England and Wales. He brings independence and detachment from the courts of South Africa, and thus is able to fearlessly protect the interest of his client JP Hlophe.

Statement issued by Barnabas Xulu, Xulu Liversage Inc. Attorneys, September 23 2013

Click here to sign up to receive our free daily headline email newsletter