Con­duct hear­ings valid – tri­bunal

Weekend Argus (Saturday Edition) - - NEWS -

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

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