Hlophe in for another long haul, writes Franny Rabkin

A decision by the Johannesburg High Court that Cape Judge President John Hlophe's rights were infringed will "substantially inhibit" the Judicial Service Commission (JSC) investigation into the Constitutional Court judges' complaint against Hlophe ­ and his counter-complaint against them.

This is according to the Constitutional Court judges who on Friday filed their application for leave to appeal against the decision of the Johannesburg High Court that they had breached Hlophe's constitutional rights to dignity, equality and his right to a hearing.

The application is brought by Chief Justice Pius Langa and his 12 colleagues at the Constitutional Court.

The judges complained to the JSC in May that Hlophe had improperly sought to influence the outcome of their cases involving African National Congress president Jacob Zuma.

Hlophe then laid a counter complaint at the JSC that the Constitutional Court judges had infringed his rights by making the complaint and subsequently issuing a media statement without giving him a chance to respond.

Before the JSC could decide on the complaints, Hlophe applied to the Johannesburg High Court, asking it to declare that his rights were infringed.

In his judgment for the majority, Phineas Mojapelo, the deputy judge president of the Johannesburg High Court, criticised the way the Constitutional Court judges had laid their complaint, and then "within a minute" issued a media statement.

By not allowing Hlophe to respond to the allegations before they issued the statement, the Constitutional Court judges infringed the judge president's rights, Mojapelo said.

He also said that while his judgment would not stop the JSC process from going ahead or mean that the Constitutional Court judges were guilty of gross misconduct, the JSC was nevertheless bound by his decision.

But the Constitutional Court judges say in their application to appeal that Hlophe's complaint to the JSC was based on the same facts as his high court application.

They say with the Johannesburg High Court binding the JSC to its decision that Hlophe's rights were infringed, they will be unable to defend themselves against Hlophe's complaint against them and the JSC will also be prevented from conducting a full investigation into the two complaints.

The judges say the consequence of this decision is also that all the factual findings made by Mojapelo would have to be accepted by the JSC.

These include that Hlophe was unable to respond to the allegation of improper influence, despite the fact that he did respond ­ saying that the allegations were "rubbish".

The judges also take issue with the inference by Mojapelo that the two Constitutional Court judges allegedly approached by Hlophe ­ Judge Bess Nkabinde and acting Judge Chris Jafta ­ were strong-armed into participating in their complaint. These findings now have to be accepted as correct by the JSC if it was to be bound by the high court judgment, the Constitutional Court judges say in their application for leave to appeal.

They say Mojapelo's judgment is "internally contradictory and unsustainable".

This is because, on the one hand, he found that the Constitutional Court judges were acting as complainants, and not as a court, when they laid their complaint, and, as such, procedural fairness did not require that they afford Hlophe a hearing.

But on the other hand, Mojapelo stated in his judgment that, nevertheless, the Constitutional Court judges were required to give Hlophe a hearing.

The Constitutional Court judges say that in deciding that Hlophe's rights were infringed, Mojapelo did not refer to a single legal authority on the right to dignity or equality, and ignored all the cases they put before the court that showed that Hlophe was not entitled to a hearing *1.

"In the result, the conclusions reached by the majority are not justified in law," the judges say in their application.

They also say Mojapelo's judgment did not "have adequate regard", to their justification for the media statement, which was made in defence of the independence of the judiciary and to prevent any public "misgivings" about their impartiality in the cases involving Zuma.

With acknowledgements to Franny Rabkin and Business Day.