Constitutional Court Justices Bess Nkabinde and Chris Jafta have, once again, approached the Constitutional Court in their bid to have a gross misconduct investigation into Western Cape Judge President John Hlophe set aside as unlawful, says a BDlive report. In an application filed this week, the justices say the Constitutional Court’s earlier order – refusing them leave to appeal – was ‘erroneously granted’, and have asked for it to be rescinded. The report notes the application will, yet again, delay an investigation into gross misconduct allegations against the Western Cape Judge President, brought by judges of the Constitutional Court eight years ago after Hlophe allegedly approached Nkabinde and Jafta in a bid to influence the outcome of cases involving President Jacob Zuma. It will also stall all the other pending judicial misconduct tribunals, against at least five other judges. They were refused leave to appeal in the Constitutional Court, as too many its justices would have had to recuse themselves because they were conflicted. But in an affidavit filed this week, Jafta said the order was a mistake, made in their absence. The highest court had not given them an opportunity to make submissions as to why it would be able to hear their application, he said. Its decision was also irregular because the very same judges who might have had to recuse themselves had been part of the decision to refuse leave to appeal, he added. ‘We think the omission was an innocent oversight on the part of our esteemed colleagues. We have no reason to think they could deliberately deny us such a basic right,’ said Jafta.

Full BDlive report  

Jafta also pointed out another irregularity, according to a Business Day report. He said Chief Justice Mogoeng Mogoeng and former Deputy Chief Justice Dikgang Moseneke were part of the JSC, one of the parties to the litigation. The court had, therefore, breached the 'time-honoured principle' that no one should be a judge in his own matter, he said.

Full Business Day report  

Why Nkabinde and Jafta appear to be determined to delay resolution of the Hlophe investigation is a question raised in a Daily Maverick commentary by Marianne Thamm. She writes that the unprecedented move has left some questioning the motive for their continued delay of a crucial matter affecting judicial accountability and integrity and that has already dragged on for eight years. She notes the Hlophe matter has been a rumbling cloud that has hovered over the judiciary, sullying its integrity and that of Hlophe himself for far too long. The fact that Jacob Zuma, too, features as a key figure in the entire saga – Hlophe is accused of approaching the t wo justices in an attempt to influence the outcome of corruption cases involving Zuma before he became President – only serves to fuel speculation as to the motives and intentions of those seeking to delay what should be an urgent matter of national importance, says Thamm.

Full Daily Maverick report