Nkabinde and Jafta: We are fighting for the Constitution

WEB_JOHNHLOPHE3_240913

Cape Judge President John Hlophe is seen at the Judicial Service Commission preliminary hearing into his alleged attempts to influence a judgment relating to President Jacob Zuma in Johannesburg, Thursday, 30 July 2009.

Cape Judge President John Hlophe is seen at the Judicial Service Commission preliminary hearing into his alleged attempts to influence a judgment relating to President Jacob Zuma in Johannesburg, Thursday, 30 July 2009.

WEB_JOHNHLOPHE3_240913

Cape Judge President John Hlophe is seen at the Judicial Service Commission preliminary hearing into his alleged attempts to influence a judgment relating to President Jacob Zuma in Johannesburg, Thursday, 30 July 2009.

Cape Judge President John Hlophe is seen at the Judicial Service Commission preliminary hearing into his alleged attempts to influence a judgment relating to President Jacob Zuma in Johannesburg, Thursday, 30 July 2009.

JOHANNESBURG – Constitutional Court Judges Bess Nkabinde and Chris Jafta have held nothing back in requesting the Hlophe Judicial Tribunal be halted.

The two have filed papers in the South Gauteng High Court requesting all the tribunal&39;s decisions be reviewed and set aside.

They are also challenging the constitutionality of section 24 (1) of the Judicial Service Commission Act, saying it could damage the separation of powers.

The two judges are central to the complaint against Western Cape Judge President John Hlophe. The complaint, by the full Constitutional Court bench of 2008, pertains to conversations Hlophe had with Nkabinde and Jafta.

He is accused of trying to influence the full court, by speaking to the two judges, in cases relating to president Jacob Zuma and the arms deal.

During the tribunal, lawyers for Nkabinde and Jafta questioned whether the hearing into the complaint was being conducted in the correct manner.

In court papers the two raise similar issues, saying the tribunal originates from processes set out in the amended Judicial Service Commission (JSC) Act, whereas the complaint predates the amended law.

“An impression has been created that we (Justice Jafta and I) are delaying, unduly, the processes of the Tribunal and that we are refusing to testify. These damaging and unhelpful perceptions are far from correct. Any suggestion that we refuse to testify misses the point,” Nkabinde says in the affidavit.

“We reiterate that we do not have the slightest problem testifying before a properly constituted structure seeking to resolve the complaint that may have been properly lodged with the JSC either under the old rules or in terms of the amended JSC Act,” she said.

Nkabinde added that the two judges “do not take kindly to the damaging and unhelpful insinuations that we are ‘back-tacking’ on the original complaint.

She also argues that the old JSC make no provision for the appointment of the Tribunal and the officer from the National Prosecuting Authority for the purpose of leading evidence.

In a separate affidavit Jafta attacks the use of prosecutor Xolisile Khanyile as evidence leader, saying it could erode the principal of the separation of powers.

Jafta and Nkabinde say they have a duty to uphold the constitution.

“It needs to be remembered that we, as judges have taken the oath to uphold the Constitution and the laws of this country. The question thus arises: on what legal basis are we expected to participate and/or countenance a process which offends against the foundational value of the Constitution?,” Jafta says in an affidavit.

He added that “it is not a question of the end justifying whatever means adopted.”

“Therefore, we submit that we cannot be expected to gloss over the fundamental defence in the process by a body whose creation offends the very foundational value of the Constitution we, as Judges, are expected to uphold simply for the sale of participating in the hearing,” he said.

The case lists the JSC, Tribunal President Joop Labuschagne, Khanyile and the Minister of Justice as respondents. 


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