Asmal presses on with Hlophe case
2009-12-24 11:00
ANC veteran Kader Asmal has applied to join in proceedings to set
aside the Judicial Service Commission’s (JSC) decision not to hold a formal
hearing on the dispute between Western Cape Judge President John Hlophe and
Constitutional Court judges, the Business Day reported today.
His application to be a friend of the court follows refusals by
Hlophe and the JSC to consent to his joining the case.
The dispute between the judges began in May last year when 13
Constitutional Court judges complained to the JSC, alleging Hlophe sought
improperly to influence the outcome of Constitutional Court cases involving ANC
president Jacob Zuma.
Hlophe counter-claimed that the Constitutional Court judges had
breached his constitutional rights by not first affording him a hearing and by
publicising their complaint.
The increasingly bitter dispute divided the legal fraternity, and
rocked the judiciary. It dragged on for more than a year, involving several
court cases, many delays and changes to the make-up of the JSC.
Eventually, the JSC decided not to proceed to a formal hearing with
cross-examination, and cleared all involved of gross misconduct.
The finding opened the way for Hlophe’s application to be appointed
to the Constitutional Court this year. The decision provoked criticism and led
to a high court review application by Freedom Under Law, headed by former
Constitutional Court Judge Johann Kriegler.
When the JSC did not appoint Hlophe to the highest court, some in
the legal fraternity thought Freedom Under Law should have abandoned its review
application.
They believed the dispute should end and the judiciary allowed to
heal.
But Freedom Under Law, which from the beginning said its case was
not about Hlophe, pressed on. It said the case involved broader issues,
including the rule of law and the JSC’s constitutional mandate.
Asmal’s application signifies his determination not to let the
constitutional issues raised go away.
Asmal’s attorney, Asmita Thakor of Webber Wentzel attorneys, said
in papers Asmal would be making submissions on legal issues not raised by
Freedom Under Law.
These included the effect of the JSC’s decision on the separation
of executive, legislative and judicial powers and on everyone’s right to have
disputes decided by an independent and impartial forum.
As the JSC was the only body that could deal with the allegations
of gross misconduct, it was obliged to decide the dispute by making “whatever
factual and/or legal findings are called for in the case”, Thakor said.
Asmal said he would also argue on international and foreign
law.
Freedom Under Law consented to Asmal’s request, and the
Constitutional Court judges said they had no objection.
- SAPA