Freedom Under Law is gratified that its years of effort in regard to Judge Hlophe's conduct have borne fruit. We respectfully welcome the view of the Judicial Conduct Committee (JCC) that the complaint by the justices of the Constitutional Court against Judge President Hlophe may constitute gross misconduct warranting impeachment. We trust that the Judicial Service Commission will now cause the disciplinary inquiry to proceed with due diligence and expedition.
We are also gratified that the JCC shares our view that the publication by a judge of scurrilous allegations against colleagues constitutes gross misconduct. We have noted the JCC's decision that for technical reasons unrelated to the merits of Freedom Under Law's complaint, the complaint cannot proceed. We shall study the JCC's reasons for this ruling and decide on our future course of action.
On 24 August 2012 the Judicial Conduct Committee heard oral submissions made by Counsel representing Freedom Under Law and Judge President Hlophe and also considered written representations earlier made in connection with the complaint lodged by Freedom Under Law against Judge President Hlophe. The Committee also considered the written representations submitted on behalf of the judges of the Constitutional Court in connection with the complaint they had lodged against Judge President Hlophe. The Committee has now made its decision in the two matters as set out hereunder.
1. The complaint lodged by the Judges of the Constitutional Court
The Committee considered that this complaint, if established, will prima facie indicate gross misconduct which may lead to impeachment. Accordingly, the Committee has recommended to the Judicial Service Commission that a Tribunal be appointed to investigate it. In doing so, the Committee took into account inter alia the clear pronouncements of the Supreme Court of Appeal that the Judicial Service Commission must make a determination whether the Judge President was guilty of gross misconduct or not.
2. The Complaint lodged by Freedom Under Law
The Committee accepted that some of the utterances made by Judge President Hlophe in the course of the proceedings that followed upon the laying of the complaint by the judges of the Constitutional Court will, if established, indicate gross misconduct on the part of the judge. However, the Committee considered the circumstances under which the utterances were made and came to the conclusion that in view of such circumstances it is not likely that such misconduct would justify impeachment. In the circumstances, the proper course to follow would be to recommend in terms of section 16(4)(a) of the Judicial Service Act 9 of 1994 as amended that an enquiry be conducted in terms of section 17(2).This would, however, expose the judge to complaints and penalties that were not there when the complaint arose. This would violate the established rule of law against retrospective application of legislation.
This complaint could therefore not be proceeded with and was accordingly dismissed.