Angela Quintal and Jeremy Gordin
14 June 2008
Cape Town — Embattled Western Cape judge president John Hlophe on Friday turned the tables on his accusers and lodged a complaint with the Judicial Service Commission against the highest court in the land, which includes the country's top judge, Chief Justice Pius Langa.
Judge Hlophe's attorney Lister Nuku confirmed that the complaint against the Constitutional Court judges had been lodged with the JSC, but would not comment further.
Meanwhle, the two Constitutional Court judges allegedly lobbied by Judge Hlope to rule in favour of ANC president Jacob Zuma have not yet provided the JSC with a smoking gun.
This means that the only complaint before the JSC, ironically, is Judge Hlophe's against the Constitutional Court itself.
The JSC last week gave the Constitutional Court an extension until Friday to provide the details that would support an unsigned statement it issued on May 30 alleging that Judge Hlophe had attempted to improperly influence some of its judges.
But Weekend Argus established on Friday that the JSC still did not have the hard facts from the country's highest court to support its unprecedented accusation against Judge Hlophe that, if true, could result in an impeachment inquiry against him.
Instead, it has again asked for more time, at least until after the long weekend.
A senior counsel who last week predicted "there might be blood on the floor and it might not be Judge Hlophe's", said in reaction to the latest drama last night: "It's like waiting for the Zimbabwean election results."
Weekend Argus reported last week that the Constitutional Court was not in agreement on how to proceed against Judge Hlophe, with some judges declining to sign a statement slating their controversial senior colleague. The compromise was to issue an unsigned statement.
The Constitutional Court attracted more criticism from supporters of Judge Hlophe and others when acting chief justice Kate O'Regan asked the JSC for an extension to supply particulars of the complaint, given that the court had rushed to issue a statement that "lynched" Hlophe in public.
In a letter to the JSC on June 6, she explained that the court first had to consult counsel before it could provide particulars.
This week the semblance of a united Bench unravelled further, when it emerged that advocate Gilbert Marcus had been appointed to represent the Constitutional Court, while the two judges allegedly lobbied by Judge Hlophe had opted to retain their own senior counsel to represent them.
This had led to raised eyebrows in the legal community and speculation that judges Bess Nkabinde and Chris Jafta would not provide affidavits to support the allegations.
On Friday five legal sources, who declined to be named, confirmed that the two judges had not provided the "smoking gun" as widely expected, given the unprecedented statement issued by the court.
However, while some cautioned against the conclusion that the complaint against Judge Hlophe had been dropped, several acknowledged that the country was facing a constitutional crisis and that the judiciary had been compromised.
Several of the sources suggested the public should wait until after the long weekend for further developments.
JSC spokesperson Marumo Moerane would only say on Friday night that a communication had been received from the Constitutional Court.
He would not elaborate on this or respond to the information in Weekend Argus's possession from legal sources or that there was a complaint from Judge Hlophe.
Judge Hlophe's fight-back campaign went into high gear this week, giving credence to those who say he's the Teflon judge.
On the day he was officially granted long leave by Justice Minister Brigitte Mabandla, his attorney Nuku issued a hard-hitting statement accusing the Constitutional Court justices of abusing the "judicial authority conferred on them by the Constitution" because they had gone public in the way they had.
Rumours that he had lodged a complaint with the JSC resulted in Nuku telling the SABC at the time that the judge was considering all his legal options, given the Constitutional Court's controversial decision to go public and then not lodging a substantiated complaint with the JSC.
Several legal professionals, including the respected former pension fund adjudicator who is now a silk in Johannesburg, Vuyani Ngalwana, have published articles questioning the conduct of those Constitutional Court judges who subscribed to the media statement of May 30.
Others like constitutional experts Paul Hoffman and Pierre de Vos believe the court acted correctly.
DA leader Helen Zille said on Friday in her online weekly newsletter the possibility that a Judge President had attempted to improperly influence Constitutional Court judges for political ends had shaken the public's faith in the independence of the judiciary.
"If Judge Hlophe did attempt to sway Constitutional Court judges to support ANC President Jacob Zuma's appeal against the admissibility of evidence in his corruption trial, it will take time and effort to restore public trust in the judiciary,"she said.
"If Judge Hlophe did not do so, it means the full bench of the Constitutional Court lied - which, needless to say, would throw us into a constitutional crisis."
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