Justice for Hlophe Alliance condemns Bizos and Mpathi

Percy Gumbi says affidavits criticizing Mvuseni Ngubane were submitted surreptitiously and without his knowledge

We, the Justice for Hlophe Alliance, condemn in the strongest possible terms the JSC's surreptitious, ex parte submissions to the Court (i.e the affidavits of Bizos and Mpathi which attacked [JSC commissioner] Attorney Mvuseni Ngubane were submitted without him knowing of the contents thereof and not having the opportunity to refute the falsehoods contained therein). 

This latest arrogant posturing can only have the effect of further demonstrating that the Honourable Judge President Hlophe will never obtain a fair hearing before this particular JSC.  It serves as proof that the JSC's cumulative acts and determination to block Judge President Hlophe's right to a fair hearing are all intentional acts designed to deprive him of his rights to:

  • due process of law;
  • equal protection under the law; and 
  • meaningful access to the tribunal.

 The sham proceedings, like those Hlophe is being subjected to, are not constitutionally adequate and only a newly constituted JSC may lawfully deal with the matter. We therefore once again call on the current commissioners to either recuse themselves or resign with immediate effect because they are grossly discredited. We remind everyone that Attorney Ngubane, a member of the JSC who wrote a dissenting opinion, makes it abundantly clear that the JSC took its eyes off the ball and allowed extraneous political considerations to influence its decision on Judge President Hlophe's request for a postponement.  He states as follows:

"Another view was expressed: that we must make sure that we at least start the evidence, to have the matter partly heard before the current commissioners, so that 'when they (the new administration) start doing their 'shenanigans' after the elections of April 22, we shall be seized with the matter,".

 Attorney Ngubane, articulates his disagreement with this view because it did not necessarily mean "that when the new administration comes in, there will then be a change of commissioners".  He further states that the "...apprehension about the new administration is astounding, and in my view should not even have entered the fray."   Moreover, even if some of the commissioners were replaced, their successors' appointments would be made in terms of the constitution and they would be men and women of "similar ability and integrity". 

Accordingly, he is "very loath to regard such a replacement as a 'shenanigan' if it does happen." The JSC realized that its own political machinations have now been exposed.  Its two members, Mpathi and Bizos resorted to the most nefarious and despicable acts their minds could conjure up.  They surreptitiously submitted affidavits to the Court hearing Judge President Hlophe's application and misrepresented facts to the court - they challenged Attorney Ngubane's credibility by claiming that no one uttered the words he attributes to them during the deliberations.  Predictably, both Bizos and Mpathi submitted their affidavits to court without the courtesy of either a notice to Ngubane or a meaningful opportunity for him to know of their submissions and to refute their false allegations.

We once again condemn the grossly incompetent manner in which Mpathi, the chairperson has been running the proceedings.  He has ignored serious conflict of interest on his part and has essentially presided over a hearing involving a junior colleague from his own court, Jafta.   He has

continued a farcical proceeding in which every rule of administrative and constitutional law governing fair hearings was violated.  He has violated the oath all South African judges are required to swear or affirm to, viz, that they "will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law." 

Bizos has also admitted that he denied postponement based on his unfavourable view of the Judge President yet to be completed lawsuit in the courts - this is a direct retaliatory act and an admission of bias which should render Bizos automatically disqualified from the Hlophe matter. It is regrettable to note that the Constitutional Court (Concourt) judges have forwarded an opposing application against Judge President Hlophe. We view this matter as putting undue pressure to the smaller courts as these judges will effectively become a player and a referee considering that some of the Concourt judges are also commissioners of the JSC.

As the JFH Alliance we perceive this act as the one of seeking victory at all costs ‘cause some of the very Concourt judges who appended their signatures are commissioners who will be presiding over the Judge President Hlophe's impeachment hearing. This act immediately undermines the independence and the impartiality of the judiciary and further demonstrates the level of desperation on the part of those who are out to get Hlophe. 

The JFH Alliance would like to reiterate its position that Judge President Hlophe will never receive a fair hearing and new commissioners must be appointed to hear his matter.  We are now calling for the new Minister of Justice to intervene and get this "mess" cleared once and for all because this persecution and vilification of an honest judge cannot be allowed in a constitutional state.

As a young democracy we can ill afford to watch by as this judicial fiasco plays itself out. What would become of the appeal should Hlophe want to appeal the matter, up to the level of the constitutional court as these judges would surely have to recuse themselves. In order for a fair hearing to ensue, the Minister should appoint other unbiased commissioners,

Statement issued by Percy Gumbi and Xolani Luthuli of the Justice for Hlophe Alliance, May 26 2009

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