Hlophe's bid to block Freedom Under Law 'an abuse', NGO says

It was “an abuse” of court for Western Cape judge president John Hlophe to close the door to Freedom Under Law (FUL) joining the court battle over the gross-misconduct finding that could lead to his impeachment.

This is according to FUL in court on Monday.

Monday’s hearing was a preliminary skirmish in a bigger battle in which Hlophe is seeking to set aside the JSC meeting that decided he was guilty of gross misconduct and which referred him to parliament for possible impeachment. He has also asked the Gauteng high court to set aside the decision of the Judicial Conduct Tribunal on which the JSC based its decision.

The finding of gross misconduct relates to a 2008 complaint by all the then justices of the Constitutional Court that Hlophe had sought to influence the outcome of cases then pending before their court related to corruption charges against former president Jacob Zuma.  In April, a unanimous Judicial Conduct Tribunal found him guilty in respect of the complaint and in August the JSC decided by a majority to confirm the finding.

When Hlophe went to court to challenge both these decisions, FUL, which has before at crucial points stepped into the fray in the Hlophe saga, asked to join the case. While all the other parties agreed, Hlophe opposed it.

In an answering affidavit, Hlophe instead took aim at FUL and its chairperson, former Constitutional Court justice Johann Kriegler. He said the organisation had a vendetta against him and that Kriegler was a regular public speaker “commenting liberally on my lack of ability, shortcomings, character flaws, disposition, reputation, etc.”

Hlophe also brought up how, in 2009, Cyril Ramaphosa and Kgomotso Moroka SC, who had sat on FUL’s international advisory board and board respectively, had left the organisation after they said they were not consulted on an earlier decision to litigate against the JSC and Hlophe.

On Monday Hlophe said FUL had not made out a case that it had a direct and substantial interest in the matter or that it was acting in the public interest, as required to join as a party to the litigation.

Hlophe’s counsel Thembalihle Sidaki said FUL had not showed that its rights would be adversely affected or would be likely to be affected.

“This court has been left to speculate,” said Sidaki.

He also argued that it was the JSC, “the specialist body mandated to regulate the judiciary”, that was vested with the public interest in this case.

He cautioned the court to weigh up the “controversies that FUL brings with it to this matter, as set out in the judge president’s answering affidavit, which have not been controverted”.

But counsel for FUL, Max du Plessis SC, referred the court to where in FUL’s founding affidavit the organisation had made out its case that it was acting in its own interest and in the public interest.

He added that Hlophe had already previously tried to deny FUL’s standing to litigate on the same complaint and the Supreme Court of Appeal had found otherwise.

On Hlophe’s “speculative and incautious allegations” about FUL and Kriegler, Du Plessis said: “These complaints are irrelevant to establishing or proving whether FUL is litigating in the public interest. The complaints are not only historical, they also relate largely to judge Kriegler (who is not FUL) and judge Kriegler’s views are not necessarily those of FUL.”

He added that the allegations were part of an “abusive trend” by Hlophe to attack those who criticised him — including former chief justice Pius Langa and former deputy chief justice Dikgang Moseneke when the complaint was first made in 2008.

The application was heard by a full bench. Deputy judge president Aubrey Ledwaba said judgment would be delivered within 10 days.

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