An application by legal advocacy body Freedom Under Law (FUL) to force the Judicial Service Commission (JSC) to reopen its investigation into Western Cape Judge President John Hlophe was dismissed in the North Gauteng High Court in Pretoria on Friday.
FUL applied to the court to set aside four different decisions by the JSC in respect of a complaint by 13 Constitutional Court judges, who accused Hlophe of gross misconduct, and his counter-complaint against them. The organisation also wanted the court to order the JSC to hold a formal inquiry into the complaints.
The judges accused Hlophe of trying to improperly influence judgements in pending matters involving Jacob Zuma before he became president. Hlophe in turn accused the judges of violating his constitutional rights by publishing their complaint before lodging it with the JSC and before giving him a hearing.
The JSC in August last year decided to discontinue its investigations by announcing the matter as finalised. FUL contended the only way to restore the public's trust in the judiciary was a full public inquiry and that the JSC's decision not to continue with the investigation threatened the rule of law and the country's future as a democracy.
FUL argued that when judges were accused of gross misconduct, the JSC had to undertake an investigation in order to vindicate the judges who were innocent and to condemn those who were not. Hlophe, who opposed the application, accused FUL if having an attitude that it knew better and simply dismissing the attitude of the judges concerned as being irrelevant. The court was told that Hlophe had no intention of pursuing his counter-complaint against the Constitutional Court judges and that the judges had also accepted the JSC's findings.
Judge Peter Mabuse ruled against FUL on every legal argument raised in support of its application. He stressed that it was not the court's duty to determine the veracity of the complaint and counter-complaint, but to establish if the JSC had followed the procedure laid down in its rules when it considered the complaints. Mabuse said he was satisfied that there was no merit in FUL's complaint that two of the commissioners involved in the decision -- Andiswa Ndoni of the Black Lawyer's Association and advocate Ismail Semenya of Advocates For Transformation -- were biased and should not have participated.
He found that the JSC had been properly constituted and entitled to make the decision it took not to continue with the matters. The decision was also supported by the majority of members. Mabuse said he agreed with the argument advanced by the JSC that it was objective in considering and determining the complaint and counter-complaint and found that the decision had been rational. "... Having considered all the evidence, the JSC found that there was no prima facie evidence which, if proven, could establish a case of gross misconduct against anyone of the parties.
"That is the end of the inquiry by the JSC. It would be wrong for the JSC to extend its inquiry beyond what it was required to do," Mabuse concluded.
Source: Mail & Guardian
Showing posts with label Johann Kriegler. Show all posts
Showing posts with label Johann Kriegler. Show all posts
Saturday, December 11, 2010
Friday, August 20, 2010
JSC 'changed tack on Hlophe'
The Judicial Service Commission (JSC) "changed tack" on controversial Western Cape Judge President John Hlophe after President Jacob Zuma appointed four new members to it last year, the North Gauteng High Court heard this week. Advocate Wim Trengove, acting for the NGO Freedom Under the Law (FUL), told the court that the JSC appeared to have discarded its earlier inquiries into Hlophe's conduct, and his counterclaim against the judges of the Constitutional Court, after the change in its composition.
In the application, FUL is seeking to overturn the JSC's decision not to proceed with its investigations. The non-governmental pressure group, in which former judge Johann Kriegler plays a prominent role, argues that the reopening of the case is essential to maintaining the rule of law and protecting the image of the judiciary.
Trengove submitted to Judge Peter Mabuza that the JSC had been "doing everything right" in terms of its own rules when it launched an investigation into claims by judges of the Constitutional Court that Hlophe had attempted to influence the outcome of a corruption case involving Zuma. At the time, it was thought that the corruption charges were all that stood between Zuma and the country's presidency. Trengove added that the JSC's inquiry into Hlophe's counterclaim that the justices had breached his constitutional rights by the manner in which they had lodged the complaint against him was also according to its rule-book. But, he noted that the JSC "changed tack" after Zuma's appointment of advocates Ismail Semenya, Dumisa Ntsebeza, Andiswa Ndoni and Vas Soni to the JSC.
The four men replaced advocate George Bizos; state advocate Kgomotso Moroko; former head of the ANC's legal and constitutional commission and acting Northern Province premier, advocate Seth Nthai; and a representative of labour and the Public Service Commission, John Ernstzen. The JSC then appeared to drop its earlier inquiries, which had included interviewing Constitutional Court judges. It eventually set up a sub-committee to investigate the matter afresh before deciding not to follow up with a formal hearing. That decision, Trengove asserted, was procedurally irregular and unconstitutional. He also said that, according to the JSC rulebook, the sub-committee's role was "not to evaluate the evidence" but merely to determine whether the claims against the judges were frivolous. "At that point [the sub-committee] doesn't inquire if it's true or not," said Trengove. He said the matter of Hlophe's conduct and his counterclaim were an obvious case where misconduct had to be ascertained because the "complaints were of gross misconduct … judges were accused of impacting upon a judgment while others were accused of conniving, cheating and lying to the public".
These allegations had grave implications for the image of the judiciary. In its heads of argument, the JSC contends that no decision was made on whether to pursue the complaints at the time of the JSC's reconstitution in July last year. Its new members had to acquaint themselves with the case, which was why it was started afresh.
But Trengove attacked these denials, calling them a "misapprehension". He asserted that the decision to follow through with a formal JSC hearing had been taken a year earlier. He provided transcripts of a JSC meeting on July 5 2008 at which the matter was discussed by the commissioners. According to the transcripts, there was unanimity that the charges of gross misconduct had to be tested.
The JSC's subsequent conduct -- including calling for a submission on whether the hearings should be open or closed -- and affidavits bore out the fact that it was preparing for a hearing, Trengove argued.
Source: Mail & Guardian
In the application, FUL is seeking to overturn the JSC's decision not to proceed with its investigations. The non-governmental pressure group, in which former judge Johann Kriegler plays a prominent role, argues that the reopening of the case is essential to maintaining the rule of law and protecting the image of the judiciary.
Trengove submitted to Judge Peter Mabuza that the JSC had been "doing everything right" in terms of its own rules when it launched an investigation into claims by judges of the Constitutional Court that Hlophe had attempted to influence the outcome of a corruption case involving Zuma. At the time, it was thought that the corruption charges were all that stood between Zuma and the country's presidency. Trengove added that the JSC's inquiry into Hlophe's counterclaim that the justices had breached his constitutional rights by the manner in which they had lodged the complaint against him was also according to its rule-book. But, he noted that the JSC "changed tack" after Zuma's appointment of advocates Ismail Semenya, Dumisa Ntsebeza, Andiswa Ndoni and Vas Soni to the JSC.
The four men replaced advocate George Bizos; state advocate Kgomotso Moroko; former head of the ANC's legal and constitutional commission and acting Northern Province premier, advocate Seth Nthai; and a representative of labour and the Public Service Commission, John Ernstzen. The JSC then appeared to drop its earlier inquiries, which had included interviewing Constitutional Court judges. It eventually set up a sub-committee to investigate the matter afresh before deciding not to follow up with a formal hearing. That decision, Trengove asserted, was procedurally irregular and unconstitutional. He also said that, according to the JSC rulebook, the sub-committee's role was "not to evaluate the evidence" but merely to determine whether the claims against the judges were frivolous. "At that point [the sub-committee] doesn't inquire if it's true or not," said Trengove. He said the matter of Hlophe's conduct and his counterclaim were an obvious case where misconduct had to be ascertained because the "complaints were of gross misconduct … judges were accused of impacting upon a judgment while others were accused of conniving, cheating and lying to the public".
These allegations had grave implications for the image of the judiciary. In its heads of argument, the JSC contends that no decision was made on whether to pursue the complaints at the time of the JSC's reconstitution in July last year. Its new members had to acquaint themselves with the case, which was why it was started afresh.
But Trengove attacked these denials, calling them a "misapprehension". He asserted that the decision to follow through with a formal JSC hearing had been taken a year earlier. He provided transcripts of a JSC meeting on July 5 2008 at which the matter was discussed by the commissioners. According to the transcripts, there was unanimity that the charges of gross misconduct had to be tested.
The JSC's subsequent conduct -- including calling for a submission on whether the hearings should be open or closed -- and affidavits bore out the fact that it was preparing for a hearing, Trengove argued.
Source: Mail & Guardian
Thursday, September 17, 2009
Kriegler turns to court over JSC Hlophe decision
Freedom Under Law (FUL) chairperson Johann Kriegler will turn to high court action in his bid to challenge the Judicial Service Commission's (JSC) decision over Judge John Hlophe. The organisation, headed by the former Constitutional Court judge, said in a statement on Thursday that the JSC had not responded to a letter it had sent.
The letter requested written reasons for its decision not to pursue a formal inquiry into a complaint and counter-complaint between Hlophe and Constitutional Court judges. "To date, no response has been received and as such FUL will now proceed to the next stage, which requires the filing of founding affidavits in the high court," said FUL.
The organisation said the letter advised the JSC that the organisation would apply to court to have the decision on Hlophe set aside on review. However, before doing so -- in accordance with the Promotion of Administrative Justice Act -- a request was made to the commission for written reasons. The letter was sent to the acting JSC chairperson Lex Mpati on September 10 and the organisation was given until September 15 to respond.
The matter was considered urgent by FUL as the JSC would be conducting interviews with candidates for the Constitutional Court from September 20. No response was received and now the organisation was preparing to file high court papers next week. "Justice Kriegler will be meeting with counsel this weekend to finalise ... [founding affidavits], to facilitate papers being filed in the course of next week."
Last week, according to a Mail & Guardian article, Kriegler said the JSC's decision not to hold a formal enquiry had left Hlophe with a cloud over his head. He said nobody could know whether the allegations against Hlophe were true or not, because the JSC had not pursued the matter fully. "That is the basic malfunction -- it has left poor Judge Hlophe with a cloud over his head." His remarks related to the charge laid by Constitutional Court judges against Hlophe last year for allegedly making an inappropriate approach to the judges regarding a judgement on Jacob Zuma before he became president.
Hlophe had also laid a counter-complaint that the Constitutional Court judges had made public their concerns before he had had a chance to respond. After a preliminary hearing, a reconstituted JSC decided not to go further with the matter and Hlophe ended his special leave by returning to work. On Thursday FuL said the letter sent to Mpati indicated that the organisation felt the JSC's decisions had contravened its constitutionally mandated role. "[These decisions] have left unanswered a very serious complaint and counter-complaint, pervaded by factual disputes, concerning the conduct of judges of the highest court in our country and a judge president of a provincial division of the high court." "Great harm" had been caused to the administration of justice, FuL said in its letter.
The organisation also said the decision had "undermined the independence and impartiality of the courts". There was no resolution as to whether the judges involved in the matter were "fit and proper" or ought to be impeached.
Source: Mail & Guardian
The letter requested written reasons for its decision not to pursue a formal inquiry into a complaint and counter-complaint between Hlophe and Constitutional Court judges. "To date, no response has been received and as such FUL will now proceed to the next stage, which requires the filing of founding affidavits in the high court," said FUL.
The organisation said the letter advised the JSC that the organisation would apply to court to have the decision on Hlophe set aside on review. However, before doing so -- in accordance with the Promotion of Administrative Justice Act -- a request was made to the commission for written reasons. The letter was sent to the acting JSC chairperson Lex Mpati on September 10 and the organisation was given until September 15 to respond.
The matter was considered urgent by FUL as the JSC would be conducting interviews with candidates for the Constitutional Court from September 20. No response was received and now the organisation was preparing to file high court papers next week. "Justice Kriegler will be meeting with counsel this weekend to finalise ... [founding affidavits], to facilitate papers being filed in the course of next week."
Last week, according to a Mail & Guardian article, Kriegler said the JSC's decision not to hold a formal enquiry had left Hlophe with a cloud over his head. He said nobody could know whether the allegations against Hlophe were true or not, because the JSC had not pursued the matter fully. "That is the basic malfunction -- it has left poor Judge Hlophe with a cloud over his head." His remarks related to the charge laid by Constitutional Court judges against Hlophe last year for allegedly making an inappropriate approach to the judges regarding a judgement on Jacob Zuma before he became president.
Hlophe had also laid a counter-complaint that the Constitutional Court judges had made public their concerns before he had had a chance to respond. After a preliminary hearing, a reconstituted JSC decided not to go further with the matter and Hlophe ended his special leave by returning to work. On Thursday FuL said the letter sent to Mpati indicated that the organisation felt the JSC's decisions had contravened its constitutionally mandated role. "[These decisions] have left unanswered a very serious complaint and counter-complaint, pervaded by factual disputes, concerning the conduct of judges of the highest court in our country and a judge president of a provincial division of the high court." "Great harm" had been caused to the administration of justice, FuL said in its letter.
The organisation also said the decision had "undermined the independence and impartiality of the courts". There was no resolution as to whether the judges involved in the matter were "fit and proper" or ought to be impeached.
Source: Mail & Guardian
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