In a historic decision, the National Assembly voted for the impeachment of two judges — suspended judge president John Hlophe and retired judge Nkola Motata — nearly 20 years after complaints were first laid against them.
The Council for the Advancement of the SA Constitution’s (Casac’s) Lawson Naidoo told Business Day that the resolution to impeach both “is a vindication of accountability of members of the judiciary, even though in these cases it has taken exceedingly long to get to the point of their removal”.
For a judge to be removed from office, the National Assembly must pass a resolution with a two-thirds majority, which is 267 votes. On Wednesday, the National Assembly voted with more than two-thirds majority in favour of their removal.
The Judicial Service Commission (JSC) found Hlophe guilty of gross misconduct, saying he had attempted to improperly influence Constitutional Court judges Bess Nkabinde and Chris Jafta to decide matters in favour of then-ANC president Jacob Zuma.
Meanwhile, Motata, crashed his vehicle while under the influence of alcohol in 2007, made racist remarks at the scene of the accident, and advanced a defence at his ensuing trial that he knew was untrue. He was convicted in 2008 and complaints were lodged years later.
However, both cases took more than 15 years each to reach finality in the National Assembly due to procedural issues within the JSC, as well as legal challenges at different courts brought by both judges.
Civil rights group Freedom Under Law (FUL), whose own legal challenges partially resulted in the vote on Motata on Wednesday, said it welcomed the finding.
“Both judges,” FUL said following the vote, “sought to avoid being held to account for their gross misconduct by instituting multiple meritless court challenges.”
In fact, Hlophe had attempted to interdict the vote earlier this week in the Western Cape High Court — which he led as judge president. But hours before the vote, the court dismissed his case paving the way for the impeachment vote.
Later in the day, the National Assembly resolved to impeach him with 305 votes in favour and 27 against. MPs from 10 out of 14 political parties represented in the National Assembly supported Hlophe’s removal, while the EFF, the African Independent Congress, the PAC and Al Jama-ah objected.
During Motata’s vote, which followed, the EFF were all asked to leave by house chair, Madala Ntombela, after they challenged his conduct during the proceedings. The EFF, which had been vocal in their opposition to impeachment of both Hlophe and Motata, therefore could not cast their votes.
This resulted in almost zero “no” votes and 296 in favour.
Hlophe has been suspended as judge president from the Western Cape High Court since December 2022. That court, therefore, has no permanent judge president, with his deputy, Patricia Goliath, acting in his stead. “The JSC,” Naidoo said “must move with speed to fill the vacancy of judge president in the [Western] Cape High Court.”
The National Assembly resolution will be communicated to President Cyril Ramaphosa, who will certify the date of both judges’ removal and then is obliged to remove them from office. From then, both will lose their lifetime salary and benefits, as well as the title of judges.
But given both men’s history, some have wondered if the National Assembly resolution could be challenged. Naidoo thinks this unlikely. “There would appear to be no grounds on which the decision of the National Assembly can be challenged,” he said.
“The outcome of the National Assembly vote is a sad moment for the judiciary,” FUL said, “because it marks the first time in SA’s history that judges will be removed from office for misconduct.”
Nevertheless, FUL says this is “a crucial step in ensuring judicial accountability, given the nature of the misconduct committed by both judges”.
Naidoo agreed. “The principle of judicial accountability has been vindicated by their removal,” he said, “as it carries with it the loss of the title of ‘judge’ as well as the loss of benefits of office such as a salary for life and other benefits.”
DA MP advocate Glynnis Breytenbach applauded parliament for impeaching Hlophe. “More than 15 years later, the DA’s position that Hlophe lacks the integrity to be a judge has been affirmed by the National Assembly, which has adopted a resolution supporting the JSC’s finding that Hlophe should be removed as a judge.”
In an EFF podcast in January, Hlophe blamed his misfortunes on political parties’ influence, though he was found guilty of misconduct by the JSC. He claimed the decision by Ramaphosa to suspend him in December 2022 was politically motivated. Hlophe said the contestation of the case by the Western Cape government was instigated by DA federal chair Helen Zille.
Hlophe said: “Political parties such as the DA, FUL and Helen Zille brought this thing back again and it started all over. When I was suspended by Ramaphosa it was clear to me it was for political reasons. Ramaphosa is a politician, he is the head of state, so whenever he takes a decision it is a political decision.”
The General Council of the Bar and Law Society of SA, two bodies that represent lawyers who appear in courts, did not have comment at the time of publication.
With TimesLIVE
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