Western Cape judge president John Hlophe’s long-term future as head of the Western Cape High Court now lies in the hands of the National Assembly. If two-thirds of members side with the majority of the Judicial Service Commission (JSC), he will be the first judge impeached in SA.
“It all lies with the discretion of the individuals,” said researcher at Judges Matter, Mbekezeli Benjamin. Citing the findings of the Judicial Conduct Tribunal (JCT), he said there were compelling reasons to impeach Hlophe but, he warned, “politicians are often unpredictable”.
President Cyril Ramaphosa must, in the short-term, determine Hlophe’s fate. Legal interest groups are pressing for him to act decisively. Last week the JSC announced it would canvas views on whether the president should suspend Hlophe pending the impeachment poll.
“It will be very difficult for him not to uphold the recommendation to suspend. We hope that also happens quite quickly,” said Benjamin. Freedom Under Law’s CEO, Nicole Fritz, agreed: “We know that for a far more junior judge, Mushtak Parker, even before the JCT had made any decision in respect of his matter, his suspension was recommended.”
That the JSC had not ordered Hlophe’s suspension raised questions for Fritz. Last Wednesday, the JSC finally announced its decision: a majority recommended Hlophe’s impeachment. The call, backed by eight commissioners, was the outcome of JSC deliberations which began in 2009 after a complaint in 2008. The JSC process was stalled by legal challenges. Hlophe may take further legal steps now that the adverse finding is out.
The JSC’s secret ballot followed hours of heated contestation on Wednesday. Four members backed a minority view. Because the panel was divided, reasons for both views were released before the voting. Politicians in the National Assembly have sight of the same two viewpoints ahead of their ballot.
Fritz said of the JSC: “It’s very difficult to see how they could have made any other decisions based on the findings of the JCT, which were so damning.” To the minority, however, the JCT’s finding that Hlophe was guilty of misconduct was unsustainable. Their view could provide grounds for National Assembly members seeking to “save” Hlophe’s career.
Business Day’s sister publication Sunday Times reliably learnt the minority view was penned by Dali Mpofu, Griffiths Madonsela, Kathleen Matolo-Dlepu and attorney Lutendo Sigogo. To the four, objective facts “point away” from Hlophe being guilty of misconduct, let alone gross misconduct.
They argued that “the kernel of the [JCT] ruling is that Hlophe JP was on a ‘mission’ and his conduct was ‘premeditated’.”
The quartet were “unable to agree” with the JCT because two Constitutional Court judges, Chris Jafta and Bess Nkabinde, distanced themselves from claims against Hlophe as to whether he improperly sought to influence them in a case involving Jacob Zuma. At the time, Zuma was tipped to be elected president.
The JSC’s minority reasoned that the complaint it assessed was not properly founded because it did not stem from Jafta and Nkabinde’s take on the matter but was based on a statement “purportedly” written by the full Constitutional Court bench.
No date has been set for Hlophe’s impeachment vote. Meanwhile, according to the likes of Fritz, suspending him would preserve the interests of justice.
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