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The DA welcomes the decision by a Judicial Conduct Committee of the Judicial Service Commission (JSC) that a tribunal be appointed to hear the 2008 complaint by the judges of the Constitutional Court against Judge President John Hlophe. We trust that the JSC will accept the recommendation and that the matter will now proceed to finalisation.

We pointed out in August 2009 that the JSC alone has the solemn duty to rule whether a judge has been guilty of gross misconduct and if so, to recommend impeachment to Parliament. When it fails in that duty, questions remain unresolved and Parliament is powerless to act.

We also said that we could only conclude that the JSC had wanted to avoid cross-examination at all costs. “After such a formal hearing we will have nothing more than what we already have” it presupposed, “except what may be extracted in cross-examination”. But that (we said) is the whole point. A finding of credibility or reasonable deduction would have had direct consequences. It seemed the JSC was seeking not to discharge its duty but to duck it.

The Supreme Court of Appeal (SCA) in March 2011 ruled that the decision by the JSC to dismiss the complaint on inter alia the basis that cross-examination would not take the matter any further constituted an abdication of its constitutional duty to investigate properly, and was therefore unlawful.

The SCA pointed out that the JSC had already concluded that, if Judge Hlophe had indeed attempted improperly to influence the Constitutional Court judges, it would have constituted impeachable misconduct; and that the JSC had also accepted that Judge Hlophe probably did say what he was alleged to have said.

As we said in 2009, a majority on the JSC clearly just wanted the whole thing to go away. It did not go away, and however little appetite there may be to bring it to finalisation, the JSC has no choice.