Cape Town High Court Ruling
This morning the Cape High Court found that the Judicial Service Commission's decision to dismiss the Constitutional Court's complaint of gross misconduct against Western Cape Judge President John Hlophe was unconstitutional and invalid.
The Cape High Court made this finding on the basis that:
That I was not given a reasonable opportunity to participate in the proceedings, despite the constitutional stipulation that the Premier of a province is a member of the JSC when considering matters relating to the specific High Court of his or her province.
The JSC was improperly constituted. It did not have the required 15 members in attendance during the proceedings and the decision making process. There were only ten members present.
A ruling of the JSC must be supported by a majority of its members. In other words, the decision not to proceed with the complaint would have needed to have been supported by at least 8 members. In this case, 6 members voted that the complaint be dismissed and 4 against.
This is an important ruling, with positive ramifications for our fledgling constitutional democracy. It means that bodies, like the JSC, established under the Constitution can be held to account if they do not adhere to the prescripts of the Constitution.
These checks and balances are key to preventing power abuse in South Africa.
I am looking forward to being invited to participate in this matter when it comes before the Judicial Service Commission in the near future.