Hlophe wins a round in battle with ConCourt

He claimed his rights were abused when the matter was made public. In a majority decision, Judge Phineas Mojapelo said Hlophe's rights were not violated by the Constitutional Court judges' complaint to the JSC, nor by the fact that they made a public statement about it - it was the speed at which it happened that violated Hlophe's rights to dignity, equality and his right to a hearing. He said the Constitutional Court had 'unreasonably and unjustifiably' violated Hlophe's right to dignity and equality by not giving him a hearing before making the complaint to the JSC and announcing it to the media. Mojapelo ruled that the JSC would have to apply its own mind to determining whether the violation of Hlophe's rights by the judges amounted to judicial misconduct. 'It is, in fact, in the interests of public policy, justice and the judiciary as a whole that the complaint be fully investigated by the JSC. Nothing in this judgment and the proceedings before this court prevents that,' said Mojapelo. Full City Press report

The High Court's finding was not a hollow victory and had helped restore the judiciary's integrity, according to the Hlophe's lawyer, Lister Nuku. 'The judgment against the Chief Justice and the 12 Constitutional Court judges is a reminder that our democracy is maturing and strengthening,' Nuku said in a statement on behalf of Hlophe. Hlophe was considering a damages claim against the judges, he said, according to a Cape Times report. He rejected claims that Hlophe had wanted to stop the JSC inquiry. Legal experts, noting that the JSC would investigate the complaint, said at the weekend Hlophe had won only a small legal battle. Nuku said this was 'intellectually dishonest'. 'A finding that the Judge President's constitutional rights to dignity, due process and equality were violated by the Chief Justice, the Deputy Chief Justice and their colleagues is no hollow victory. It is historic and will remain engraved in our legal culture.' Full Cape Times report (subscription needed)

What appeared to be a carefully balanced Bench heard the application: A report in the Saturday Star suggests the mix of Judges Dimpheletse Moshidi, Dirk Marais, Antonie Gildenhuys, Mojapelo and Rami Mathopo was clearly aimed at preventing allegations of racism. Minority judgments were made by Gildenhuys and Marais, who said the application should be dismissed. They said that the orders sought by Hlophe were discretionary and the court should exercise its discretion. According to a Beeld report, Marais said Hlophe's application bordered on the abuse of the courts. He made it clear that he believed Hlophe should never have gone to the High Court while the JSC's investigation was still under way. 'Judge John Hlophe, you chose your forum. Now you have to continue in that forum,' Marais said in his judgment. Full Saturday Star report Full Beeld report

And a report in The Sunday Independent suggests the matter may be taken on appeal to the SCA. It says because the judgment found that Hlophe's rights had been violated by the Constitutional Court, it seems that the matter is nowhere nearer an end than it was a month ago - and that, if the judges of the Constitutional Court want to proceed before the JSC, they will have to take the High Court judgment on appeal before the SCA. Full report in The Sunday Independent Judgment