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Hlophe application dismissed

Pretoria - An application by legal advocacy body Freedom Under Law (FUL) to force the Judicial Service Commission (JSC) to re-open its investigation into Western Cape Judge President John Hlope, was dismissed in the North Gauteng High Court on Friday.

FUL applied to the court to set aside four different decisions by the JSC in respect of a complaint by 13 Constitutional Court judges, who accused Hlope of gross misconduct and his counter-complaint against them.

The organisation also wanted the court to order the Judicial Service Commission to hold a formal enquiry into the complaints.

The judges accused Hlope of trying to improperly influence judgments in pending judgments involving Jacob Zuma before he became president.

Hlope in turn accused the judges of violating his constitutional rights by publishing their complaint before lodging it with the JSC and before giving him a hearing.

The JSC in August last year decided to discontinue their investigations by announcing the matter as finalised.

FUL contended the only way to restore the public's trust in the judiciary was a full public enquiry and that the JSC's decision not to continue with the investigation threatened the rule of law and the country's future as a democracy.

FUL argued that when judges were accused of gross misconduct, the JSC had to undertake an investigation in order to vindicate the judges who were innocent and to condemn those who were not.

Veracity of complaint

Hlope, who opposed the application, accused FUL of having an attitude that they knew better and simply dismissing the attitude of the judges concerned as being irrelevant.

The court was told that Hlope had no intention of pursuing his counter-complaint against the Constitutional Court Judges and that the judges had also accepted the JSC's findings.

Judge Peter Mabuse ruled against FUL on every legal argument raised in support of their application.

He stressed that it was not the court's duty to determine the veracity of the complaint and counter-complaint, but to establish if the JSC had followed the procedure laid down in its rules when it considered the complaints.

Mabuse said that he was satisfied that there was no merit in FUL's complaint that two of the commissioners involved in the decision - Andiswa Ndoni of the Black Lawyer's Association and Adv Ismail Semenya of Advocates For Transformation - were biased and should not have participated.

He found that the JSC had been properly constituted and entitled to make the decision they took not to continue with the matters. The decision was also supported by the majority of members.

Mabuse said he agreed with the argument advanced by the JSC that it was objective in considering and determining the complaint and counter-complaint and found that the decision had been rational.

"That is the end of the enquiry by the JSC.

"It would be wrong for the JSC to extend its enquiry beyond what it was required to do," Mabuse concluded.

http://www.news24.com/SouthAfrica/News/Hlophe-application-dismissed-20101210