Conduct hearings valid – tribunal

THE AMENDED Judicial Service Commission Act did not affect a tribunal hearing into misconduct against Western Cape Judge President John Hlophe, the tribunal said.

“There is nothing in the amendment act which expressly or impliedly invalidates complaints made before it took effect,” the tribunal said in its reasons for dismissing objections raised by parties involved.

The reasons were handed down yesterday after it dismissed objections raised on behalf of Hlophe, and Constitutional Court judges Bess Nkabinde and Chris Jafta last month.

The preliminary issues included that the tribunal was not properly constituted in terms of the law, on the basis that the complaint it had to investigate was not on affidavit as required by section 14(3)(b) of the Judicial Service Commission Act.

Tribunal president Judge Joop Labuschagne said yesterday the tribunal was “forced” to supply its reasons to the interested parties. He did not read out the reasons. A copy was handed to the parties involved, and journalists were told to expect e-mails.

The reasons would be handed to Chief Justice Mogoeng Mogoeng.

In the document explaining the reasons, the tribunal said the “common cause facts” were that the amendment act only came into force in June 2010.

A complaint against Hlophe was lodged by the Constitutional Court judges in May 2008, and a statement handed over in June 2008.

“The complaint in the present matter was submitted in terms of section 177 (1)(a) of the constitution in terms of the rules adopted by the JSC,” the tribunal said in its reasons.

Neither the constitution nor the rules required complaints to be made on oath or affirmation.

“We can find no reason why the coming into operation of the amendment act could have invalidated the then existing complaint of the Constitutional Court justice,” it said.

Selby Mbenenge, for Jafta and Nkabinde, had argued that the rules for the tribunal had not been gazetted by the justice minister, as required by section 5 of the JSC Act.

The tribunal said it was its view that the act was not the enabling provision in the matter. “The enabling provision is section 178 (6) of the Constitution.

“On a proper interpretation of the relevant provisions, it seems to us that the requirement of publication of the rules is of a more formal nature,” it said.

The rules were referred to and discussed with approval by the Supreme Court of Appeal on two occasions.

“The validity of the complaint and all the rules were never objected to before. It is only now, after more than five years have expired, that these preliminary objections are now argued,” the tribunal said.

On the legality of the proceedings, the tribunal added that the Judicial Service Commission would be failing in its duties if it did not hold an inquiry when a complaint was lodged against a judge. – Sapa