IN THE HIGH COURT OF SOUTH AFRICA SOUTH GAUTENG HIGH COURT HELD IN JOHANNESBURG

CASE NO:

In the matter between

HLOPHE, MANDLAKAYISE JOHN - Applicant

and

JUDICIAL SERVICE COMMISSION- First Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT - Second Respondent
JUDGES OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA - Third Respondents
KROON AJ - Fourth Respondent
JAFTA AJ - Fifth Respondent

SUPPLEMENTARY FOUNDING AFFIDAVIT

I, the undersigned,

MANDLAKAYISE JOHN HLOPHE

do hereby make an oath and say that:

1 I am the applicant in this matter and I deposed to the main founding affidavit on 7 May 2009.

2 The facts to which I depose herein are within my own personal knowledge, save where it is otherwise stated or the context indicates otherwise, and are, to the best of my knowledge and belief, both true and correct.

3 After filing and serving the application on 7 May 2009, it occurred to my legal representatives and I that there are additional material we omitted from the main founding affidavit and which may be useful to the Court in the determination of this application. The purpose of this supplementary affidavit is to bring that material to the Court's attention.

Amendment of Notice of Motion

4 Before doing that, I am advised and believe that the manner in which prayer 4 in PART A of the Notice of Motion is couched unduly limits the remedy that I seek. The purpose is not to seek prayer 4 in the alternative to prayer 3 but rather in addition to it. Thus what I seek is an order:

4.1 interdicting the Judicial Service Commission from further performing any function in relation to the impeachment proceedings concerning me pending the final determination of the constitutional dispute between the Judges of the Constitutional Court and me that I have referred to the Constitutional Court by way of application for leave to appeal in terms of Rule 19 of the Rules of the Constitutional Court,

AND

4.2 interdicting the Judicial Service Commission from further performing any function in relation to the impeachment proceedings concerning me pending the final determination of the review application sought in PART B of the Notice of Motion.

5 The effect of this is that, if granted, the interdict must remain in force until both the constitutional dispute and the review proceedings have been finally determined by the courts. The effect of the previous formulation, I am advised and believe, was that in the event of the interdict being granted under prayer 3, then it would not be necessary for the Court to grant it under prayer 4. That is not my intention.

Additional Bases for the Interdict and Review Applications

6 In addition to the grounds advanced in the main affidavit, I add the following:

6.1 The Judicial Service Commission ("the JSC") obtained legal opinion from eminent senior counsel who advised it not to proceed with its proceedings because it was not properly constituted in the absence of the Minister of Justice and Constitutional Development. Yet despite this legal difficulty, which must surely render the entire proceedings null and void on a plain reading of the relevant provisions of the Constitution of the Republic of South Africa, 1996, Act 108 of 1996 ("the Constitution"), the JSC pressed on in the absence both of the Minister and that of his designated alternate. This in my respectful submission demonstrates the JSC's bias against me. Legal argument in this regard will be advanced on my behalf at the hearing of the matter if necessary.

6.2 The JSC's suggestion that the Minister's recusal of himself from the proceedings is a mere personal matter is a serious misdirection on a plain reading of the relevant provisions of the Constitution. Legal argument in this regard will be advanced at the hearing of this matter in due course.

6.3 In any event, I can think of no reason why he should have recused himself and that is why my counsel asked for reasons at the hearing of 1 April 2009 which the Chairperson dismissed nonchalantly. Neither I nor the Judges of the Constitutional Court sought his recusal. His involvement with me concerned only the issue of whether or not I should return to my office. It had nothing to do with allegations of judicial misconduct levelled against me by the Judges of the Constitutional Court. It also had nothing to do with the complaint I laid against the Judges of the Constitutional Court.

6.4 Even if I believe that he is biased against me, as I do in respect of the JSC as currently constituted, he had no basis for recusing himself without my making a formal application to that end. While I believe the JSC is biased against me, and conveyed that belief to it through my counsel, I have not sought their recusal. Yet none of the other members have considered it necessary voluntarily to recuse themselves. On what lawful basis should he?

6.5 The JSC's bias against me was also demonstrated during my application to the South Gauteng High Court for declaratory orders that the Judges of the Constitutional Court had unreasonably and unjustifiably violated my constitutional rights as enshrined in the Bill of Rights chapter of the Constitution. While the JSC purported to abide the decision of the Court, and made an undertaking that it would not continue with its proceedings pending the outcome of that application, it nevertheless proceeded strongly to oppose the orders that I sought. At the hearing of the application, my junior counsel took exception to the JSC's position and pointed out it cannot involve itself in a dispute between protagonists that it will eventually have to adjudicate. At the commencement of junior counsel's address the Judge presiding took the view that the JSC's participation in the dispute between the Judges of the Constitutional Court and I in relation to a matter which the JSC will eventually adjudicate may be the risk for the JSC but not the Court's concern. It is my respectful submission that the risk has now materialised and it is this: the JSC's strenuous opposition of the relief I sought against the Judges of the Constitutional Court founded a reasonable apprehension of bias.

7 On these additional grounds, I submit that the JSC impeachment proceedings fall to be halted and ultimately set aside.

________________________________

MANDLAKAYISE JOHN HLOPHE

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