Hlophe's fate might end up in the hands of MPs

Should the Judicial Services Commission (JSC) decide to impeach Western Cape Judge President John Hlophe, his fate will effectively be in the hands of MPs.

The JSC was scheduled to start its hearing on Wednesday into the Constitutional Court judges’ complaint against him for allegedly trying to influence colleagues, Judges Chris Jafta and Bess Nkabinde, in a judgement relating to African National Congress president Jacob Zuma.

The JSC would also consider a complaint by Hlophe against the judges of the Constitutional Court.

If, at the end of the hearing, the JSC finds against Hlophe, Section 177 of the Constitution comes further into play.

This section states that a judge may be removed from office only if the JSC finds that he or she suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct.

The matter then goes to Parliament, where the National Assembly has to agree with the JSC’s decision to remove the judge by at least two-thirds of its members.

The president must then remove the judge from office.

According to Shameela Seedat, who wrote the Institute for Democracy in South Africa’s guide on issues and procedures in the Hlophe complaint, no judges have been impeached in South Africa to date, although the JSC has received a number of complaints against judges.

However, complaints have generally not gone past the sub-committee stage of the process, because the JSC found there were insufficient grounds to justify the invocation of the impeachment procedure.

One exception, in 2006, was when the JSC charged Judge Ismail Hussain of the then Transvaal High Court with gross misconduct—he had allegedly misused money in his safe-keeping linked to an arbitration award.

But Hussain resigned shortly before the JSC was meant to hold a formal hearing and there was no need to invoke the impeachment process.

Prior to 1994—the apartheid era—there was a single attempt to remove a judge.

Opposition MP Helen Suzman brought a parliamentary motion to remove Judge JJ Strydom in 1988 on the ground that he had delivered a racist judgement in a murder trial, but she had no support from the majority of parliamentarians.—Sapa

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