Suspended Western Cape judge president John Hlophe says in court papers that parliament’s role is not merely to “rubber stamp” the Judicial Service Commission’s (JSC’s) decision that he was guilty of gross misconduct.
He has approached the Constitutional Court asking it to set aside the November decision of parliament’s justice committee to recommend to the National Assembly that he be removed from judicial office. He also wants the highest court to direct parliament to adopt rules for the impeachment of judges. His application was filed in the Constitutional Court on Tuesday.
Hlophe said this is the first time the National Assembly has been called upon to impeach a judge. “Consequently, the fact that the National Assembly does not have rules regulating the removal of judges puts judicial independence at grave constitutional risk and undermines our constitutional democracy,” he said.
The court papers were served on the speaker of parliament, the chair of the committee, all the parties represented in parliament, the justice minister, the president and the Judicial Service Commission last week, according to a report in IOL on Tuesday. On Wednesday, parliament’s spokesperson Moloto Mothapo confirmed to TimesLIVE Premium that parliament will press ahead with its impeachment vote — unless it is interdicted by the judge president.
Last week, secretary of the National Assembly, Masibulele Xaso, told TimesLIVE Premium that the National Assembly programme committee, the structure responsible for the programme of the house, would convene on February 1 to discuss the scheduling of business for the forthcoming period — “including this matter”.
Hlophe’s application was not brought on an urgent basis and does not ask the apex court to interdict a vote by the National Assembly. But in his affidavit Hlophe says the application is “founded on the urgent need for this court to intervene and thereby prevent the National Assembly’s imminent unlawful and unconstitutional conduct ... which might lead to my removal as a judge”.
He said parliament had misconstrued its role, function and the ambit of its powers in relation to the impeachment of judges. The justice committee believed it was for the JSC to decide whether Hlophe was guilty of gross misconduct, while its role was “political” — to look at sanction. But Hlophe said this approach was wrong.
“Reading down the National Assembly’s removal powers to a merely rubber-stamping of the findings of the JSC on gross judicial misconduct would not comply with its constitutional mandate,” he said.
The committee should look into whether the JSC’s decision was in compliance with the law, he said. This was in line with its constitutional oversight function. This meant that the process needed rules. “When the JSC process is complete, the National Assembly is expected and must conduct its own decision-making process — which would go well beyond the restricted scope envisaged by the committee and would include an inquiry into whether a judge had committed misconduct,” he said.
Hlophe said he should have the right to present his case to members of the National Assembly — “as the true decision-makers” in terms of the decision. “There is no assurance that the filtered information members shall receive third-hand from the committee, will apprise them of ... key information they require to properly apply their minds,” he said.
In reaching the view that its part in the impeachment process was a political decision, the justice committee relied on the high court judgment of three judges, which said: “The thesis advanced on behalf of Hlophe JP is without merit. Its essential thrust is that the National Assembly cannot be reduced to a rubber stamp of the JSC. This misconstrues the scheme of the constitution, which assigns different roles to the JSC and to the National Assembly, not overlapping roles. Also, neither the National Assembly nor the JSC are subordinate to one another. The JSC is vested with the power to make a decision based on the norms of judicial ethics. The National Assembly makes a political decision.”
But Hlophe said it is “inconceivable” that a constitutional body like the National Assembly, carrying out a constitutionally mandated function in a “multistage disciplinary process for judges”, could be reduced to making merely a political decision. Its function is quasi-judicial, he said. This means parliament must comply with the principles of just administrative action and a fair public hearing.
He added that the high court had given him leave to appeal against its judgment, that there were good prospects on appeal and that his appeal had only faltered because the state had refused to fund his litigation.
Hlophe said the committee failed to consider his written representations on the unlawfulness of the JSC’s decision and the failure of the state to fund his litigation on this score. He had also asked the committee to conduct an inquiry into whether the JSC process was “unlawfully interfered with by a member of parliament and an NGO of a former justice”, he said. “These requests were simply ignored. The disdain with which my appeal to the committee was handled is noteworthy,” he said.
Hlophe said he was not bringing the application to “drag out the process of my removal” but to ensure that the system for impeaching judges is a lawful one.
“An intervention of the Constitutional Court is necessary at this stage to prevent a grave injustice currently unfolding in parliament, of a judge being removed unconstitutionally by the National Assembly,” he said.
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