Freedom Under Law (FUL) chairperson Johann Kriegler believes the Judicial Service Commission (JSC) left Western Cape Judge President John Hlophe with a cloud over his head when it decided not to cross-examine him, the Mail & Guardian reported on Friday.

"You know the charges against Judge Hlophe are probably as serious as you can possibly level against a judicial officer ? trying to subvert the integrity of the highest court in the land," said Kriegler, a former Constitutional Court judge and a founder member of FUL.

"I don't know whether that is true or not, but what I do know is that nobody knows because the JSC would not examine it. That is the basic malfunction ? it has left poor Judge Hlophe with a cloud over his head. I don't know how he looks at the eyes of his colleagues..."

His remarks related to the charge laid by Constitutional Court judges against Hlophe last year for allegedly making an inappropriate approach to the judges regarding a judgment on Jacob Zuma before he became president.

Hlophe had also laid a countercomplaint that the Constitutional Court judges had made public their concerns before he had had a chance to respond.

After a preliminary hearing, a reconstituted JSC decided not to go further with the matter and Hlophe ended his special leave by returning to work.

However, Kriegler and some members of FUL want the matter reviewed.

JSC 'malfunction'

In the interview, Kriegler said although the Hlophe matter was central to concerns over the JSC, he was "merely the trigger mechanism that got the JSC into operation, at which it malfunctioned ? and its malfunction is the problem".

He said if Hlophe, whom he regarded as "inexperienced and headstrong, who doesn't easily listen to advice" had been dealt with more firmly the last time the JSC had to investigate a matter related to him, the latest events may not have happened.

He believed evidence presented by Judge Bess Nkabinde was taken out of context and narrowed down to "I want to decide in favour of Zuma", but, said Kriegler, "her evidence never was that, it was the impression he had left".

"It would be astounding if a man of his intelligence found it necessary to spell it out in big, block capital letters."

He felt it "tragic" that Chief Justice Pius Langa had to go into retirement with the allegations hanging over this head.

"And that is not Hlophe's fault, that's the JSC's fault ? they ducked the issue. I don't why they did it."

Consulting Tutu

Kriegler said among those he consulted before calling for a review was Archbishop Emeritus Desmond Tutu.

"He said we must do this for the sake of our grandchildren, 'go ahead', and he prayed for me. Uuuuh, I'm a lapsed Christian, but it grips you."

Kriegler was not worried about criticism from the African National Congress saying it would be undesirable for them to make the matter political, as it was about the rule of law.

"They are the government of the day and if an instrument of state is not functioning properly the ANC should be worried about it."