Western Cape Judge President John Hlophe
The Gauteng High Court in Johannesburg has ruled that Freedom Under Law (FUL) can be joined as a party in Western Cape Judge President John Hlophe's bid to overturn the impeachable gross misconduct finding made against him.
A full Bench of the court made the ruling on Monday morning, after dismissing all 11 of the grounds that Hlophe raised in opposition to FUL being admitted into his gross misconduct challenge, which is due to be heard in February. It also ordered Hlophe to pay FUL's legal costs.
FUL has been pivotal in ensuring that Hlophe face a gross misconduct tribunal for trying to sway two Constitutional Court justices to rule in favour of then-ANC president Jacob Zuma, after the Judicial Service Commission (JSC) effectively acquitted him of wrongdoing in 2009. FUL challenged that decision – and won.
After 13 years of legal battles and delays, a Judicial Conduct Committee Tribunal – headed by retired Judge Joop Labuschagne – finally found Hlophe guilty of gross misconduct in April this year.
Hlophe now insists that FUL should be barred from participating in his litigation to overturn the findings made against him – based, in part, on his unsubstantiated accusations that FUL chairperson, retired Constitutional Court justice Johann Kriegler, may have somehow influenced those findings.
The High Court was unconvinced by that argument and found that "[p]aradoxically, 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. Its investment in the case is palpable," Judge Roland Sutherland wrote on behalf of the full Bench.
"Moreover, by taking the initiative to seek a review of the decision by the JSC in 2009 to decline to institute a disciplinary enquiry, FUL established the very foundation for the chain of events culminating in the 2021 decision of the JSC.
"Of course, whether that decision of the JSC is lawful and whether FUL' s stance is justifiable remain to be seen, and those questions await the conclusion of the review proceedings."
Supported by his fellow judges Aubrey Ledwaba and Margaret Victor, Sutherland found that FUL "has demonstrated its credentials as a bona fide public interest organisation, acknowledged to be so by our courts, whose objectives are the upholding of constitutional norms through participation in litigation of constitutional significance".
He added that the issue raised in Hlophe's gross misconduct review "is a question of profound constitutional importance".
"FUL has been engaged in this case at earlier stages of its evolution. The merits or demerits of its stance on the controversy are irrelevant to the joinder question. On grounds of its own legal interest evidenced by its prior involvement in the series of cases and as an agent of the public interest, FUL has shown proper grounds to be joined".