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Freedom Under Law admitted as a party in Hlophe litigation

Full bench of high court finds that NGO has historical connection to case

Western Cape judge president John Hlophe's bid to prevent Freedom Under Law joining litigation on his impeachment has failed. File photo.
Western Cape judge president John Hlophe's bid to prevent Freedom Under Law joining litigation on his impeachment has failed. File photo.
Image: Trevor Samson

Freedom Under Law’s (FUL) investment in litigation on the possible impeachment of Western Cape judge president John Hlophe is “palpable”, the Johannesburg high court said on Monday when it ordered that the organisation may join Hlophe’s court case to prevent his impeachment.

Hlophe has approached the high court to set aside a meeting of the Judicial Service Commission (JSC) that found him guilty of gross misconduct. The finding related to a 2008 complaint by all the then justices of the Constitutional Court that he sought to influence the outcome of judgments then pending before the apex court relating to corruption charges against former president Jacob Zuma.

He also wants the court to set aside the finding of the Judicial Conduct Tribunal, upon which the JSC based its decision.

When FUL sought to join the litigation – to support the JSC – Hlophe opposed it, saying FUL had not made out a case that it had a direct and substantial interest in the matter or that it was acting in the public interest as required to join as a party to the litigation.

But a full bench of the Johannesburg high court on Monday found that FUL’s reputation as a champion of the rule of law and constitutional democracy had been repeatedly recognised by the courts.

FUL had also been actively involved in the Hlophe saga, said deputy judge president Roland Sutherland. In particular, it was FUL that litigated to overturn a 2009 decision by the JSC that cleared Hlophe in the complaint. FUL’s litigation forced it to begin a disciplinary hearing anew and brought the JSC to its Judicial Conduct Tribunal and ultimately the finding of gross misconduct.

“Part of FUL’s case for intervention is its historical connection to the evolving case since 2009,” said Sutherland.

Hlophe also argued that FUL had a partisan stance and was hostile towards him, in particular referring to public statements by FUL chairperson, retired Constitutional Court justice Johann Kriegler, who he said had a vendetta against him.

But Sutherland said although the alleged hostility might be relevant when the review is argued, when it came to establishing whether a party had a legal interest to intervene “such hostility in no way diminishes the case put up by FUL.

“Paradoxically, the reality of a long-standing adversarial involvement in this controversy about the alleged misconduct of Hlophe JP enhances FUL’s case for intervention.

“FUL has, it is common cause, devoted no little energy over a decade to drive the relevant organs of state to investigate and discipline Hlophe JP,” said Sutherland.


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