The Judicial Service Commission’s (JSC) finding of gross judicial misconduct against Western Cape judge president John Hlophe should be set aside because it is irrational and unlawful, Hlophe’s advocate Thabani Masuku argued in the Gauteng High Court Monday.
Hlophe was found guilty of gross judicial misconduct — an impeachable offence — for having tried to influence two Constitutional Court judges Chris Jafta and Bess Nkabinde on a pending matter before the court related to former president Jacob Zuma.
Masuku argued before a full bench presided over by Gauteng deputy judge president Roland Sutherland that the JSC had failed to make the presumption that Hlophe had judicial integrity and independence in making his remarks to the judges. This relates to the motivation of Hlophe in making the remarks which he claims were not made with the intention of influencing the judges or to undermine judicial independence, but were made during a collegial discussion with fellow judges which also covered a wide range of other issues. There was no element of attempted persuasion.
“If this (merely talking) is the standard for judicial misconduct then no judge in the country is safe. Judges talk,” Masuku said.
He argued that the threshold of withdrawing the presumption of judicial integrity and independence from a judge must be very high. He proposed that the standard adopted in Canada be used. This said that the impugned conduct must be “so manifestly and profoundly destructive of the concept of impartiality, integrity and independence of the judicial role that public confidence would sufficiently be undermined to render the judge incapable of executing a judicial role.”
Since the complaint against Hlophe was first made more than 13 years ago, he had continued to deliver judgments and continued to enjoy public confidence, Masuku argued.
He said that according to Hlophe, high court judges regularly discuss cases among themselves without this being perceived as an attempt to influence one another. There was no clear published written rule prohibiting this.
In his discussions with Nkabinde and Jafta, Hlophe had merely expressed his views as was his constitutional right to freedom of expression without this undermining the principle of judicial independence.
“The only regulators of private conversations between judges are the judges themselves,” Masuku said. “The discomfort of a judge is not evidence of misconduct.”
As well as substantive grounds for setting aside the JSC’s finding there were also procedural grounds for doing so, Masuku said, as the JSC was not properly constituted to take the decision. If the JSC was not properly constituted then its finding was invalid.
He argued that the president of the Supreme Court of Appeal Mandisa Maya was not entitled to delegate the function of sitting on the JSC for the Hlophe hearing to Supreme Court of Appeal judge Boissie Mbha, because of her unavailability and that of the deputy president of the court Xola Petse. Mbha’s presence on the JSC was unconstitutional, Masuku said.
The presence of Constitutional Court judge Sisi Khampepe was also improper, as she was appointed as acting deputy chief justice for one day byPresident Cyril Ramaphosa solely for the purpose of presiding over the JSC. Masuku said the law did not allow for appointments by the president to the JSC. It was also not proper for her to assume this position in the light of her prior judicial decision in relation to a Hlophe matter.
Masuku said removing Mbha and Khampepe from the JSC meant that there was not the required eight-member majority for it to make a decision on Hlophe. A majority had to be calculated on the basis of the 15 members of the JSC.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.