Seven Constitutional Court justices think “they may have reason to recuse themselves” in impeached judge John Hlophe’s bid to reverse his removal.
Soon before parliament voted to impeach the former Western Cape judge president, he approached the highest court asking it to set aside the decision by parliament’s justice portfolio committee, to recommend the vote. However, his case was not brought on an urgent basis and did not seek an interdict. With no interdict in place, parliament pressed ahead.
The constitution requires at least eight of its justices to hear any matter. If seven of the 10 sitting justices were to recuse themselves, the court would not be quorate.
Directions from the registrar last week asked Hlophe and the other parties to the case for submissions on this possibility. The directions said three justices — justice Stevan Majiedt and acting justices David Bilchitz and Matthew Chaskalson — had no potential reason to recuse themselves.
The other seven justices sitting are chief justice Raymond Zondo, justices Mbuyiseli Madlanga, Rammaka Mathopo, Nonkosi Mhlantla, Leona Theron, Zukisa Tshiqi and acting justice Alan Dodson.
The directions said “their reasons are different but relate to some of the following”. These included “allegations of enmity between one justice and the applicant [Hlophe]”, that one justice is a member and chair of the Judicial Service Commission (JSC), which is a party to the case and attempting to mediate the dispute between the justices of the Constitutional Court and Hlophe, and “a prior personal friendship with the applicant”.
The directions do not say which of any of the reasons are attributable to which justices.
Zondo is the chair of the JSC and has previously recused himself from cases involving the complaint against Hlophe because he had tried to mediate the dispute — after a complaint was made to the JSC in 2008 by all the then-justices of the Constitutional Court — in its early days. But it is unclear who of the justices mentioned had a prior friendship with Hlophe and who is alleged to have enmity with him. It is also unclear whether any other of the justices sitting were also involved in mediation efforts.
The other reasons cited as possible grounds for recusal are “having previously adjudicated cases relating to the applicant; having appeared as counsel for two justices of this court in the disciplinary process that the JSC conducted against the applicant and at which oral evidence was heard; having appeared as counsel in judicial review proceedings in respect of a decision of the JSC affecting the applicant.”
However, in the early days of the misconduct complaint against Hlophe, Madlanga was, for a brief time, counsel for justices Bess Nkabinde and Chris Jafta, the two justices Hlophe was later found to have tried to unduly influence.
When Mathopo was a High Court judge, in 2008 he was one of a full bench panel of five judges who decided on an application by Hlophe asking the court to declare the complaint against him unlawful. Mathopo was part of the three judge majority who found in Hlophe’s favour. Mhlantla was part of the nine justice bench of the Supreme Court of Appeal (SCA) that overturned that judgment in 2009.
Theron was part of the SCA bench that heard Freedom Under Law’s application, which resulted in the complaint against Hlophe being reinstated.
The directions ask the parties to the case — Hlophe, the speaker of the National Assembly, the chair of the justice portfolio committee, all the political parties in parliament, the president, the justice minister and the JSC — whether they agree “the above grounds are sufficient for recusal”.
If they are, say the directions, should the justices — even if they would normally recuse themselves — nonetheless participate in deciding Hlophe’s application? The directions ask what the legal basis for this participation would be.
The directions refer to two of its previous judgments, both involving Hlophe. In them, the Constitutional Court dismissed applications for leave to appeal against SCA judgments on the basis there were so many justices disqualified there would be no quorum.
“Constitutionally, it was not open to have acting judges specially appointed to fill the ‘vacancies’ that would arise when disqualified justices recused themselves … [but] a matter could not be left pending indefinitely and that, therefore, the application should be dismissed,” said the Constitutional Court.
However, the difference between those judgments and the new application by Hlophe is that he approached the highest court directly and not on appeal, saying it has exclusive jurisdiction so only it can hear his case. In its directions the court asks the parties for submissions on whether they agree that the Constitutional Court has exclusive jurisdiction and whether the court would allow disqualified judges to consider this issue and decide the case if they agree the Constitutional Court is the only one that can hear it.
The directions have also been sent to legal bodies including Advocates for Transformation, the Black Lawyers Association, the General Council of the Bar, the Law Society and the National Association for Democratic Lawyers.
These organisations and “any other entity with an interest in the matter” can file submissions on the legal issues involved. Only parties to the case may make submissions on whether the grounds listed are sufficient grounds for recusal.
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