Former judge vows to fight on

Former Western Cape Judge President and Mkhonto we Sizwe Party parliamentary leader John Hlophe has signalled that he will turn to the High Court to challenge the process whereby he was impeached, after the Constitutional Court denied him direct access. ‘I intend to launch a High Court application raising exactly the same issues that I raised in the application to the Constitutional Court,’ he said in an answering affidavit filed in response to Freedom Under Law’s legal challenge to his appointment to the JSC. According to a Mail & Guardian report, Hlophe added: ‘In my intended application, I seek an order declaring the conduct of the NA (National Assembly) in adopting a resolution in terms of section 177(1)(b) of the Constitution without conducting a lawful inquiry to be unconstitutional.’ Hlophe said he also intended to revive an application before the Supreme Court of Appeal to overturn the JSC finding that he had committed impeachable gross misconduct. It was abandoned after the state stopped funding his legal fees. ‘As soon as state funding for my legal representation is approved, I intend to file an application reinstating my appeal.’ Hlophe’s counsel said the answering affidavit, which is as yet unsigned, was revised to address the apex court’s decision that his application did not engage the court’s exclusive jurisdiction.

That decision comes before the Western Cape High Court is due to hear applications by Freedom Under Law, the Democratic Alliance (DA) and Corruption Watch to set aside his appointment to the JSC as irrational and unlawful. The M&G report says in his composite answering affidavit to the three applications, Hlophe said the parties wrongly premised their present challenge on the assumption that his removal was an irrevocable fact. ‘The extant application by the DA assumes that the processes have all been concluded when that simply is not the case.’ Its proper remit, he said, was to review the merits of the decision. ‘I believe that the NA wrongly took the attitude that it was bound by the findings of the majority JSC on the question of whether I had committed gross misconduct, and would not conduct its own independent inquiry on the basis of the obligations it has under section 165(4) of the Constitution,’ he said. By believing the Constitution limited its inquiry to the appropriate sanction, he continued, it had abrogated its duty. And even on the matter of sanction, it erred in not hearing ‘my side of the evidence’.

Full Mail & Guardian report