It has been exactly a year since the judicial tribunal to investigate gross misconduct against Western Cape Judge President John Hlophe was postponed. The date for the next hearing is yet to be determined in the case, which has been dragging on for more than a decade.
The tribunal was postponed in July 2018 after one of the members, Free State Judge Cagney Musi, recused himself from the panel. Musi’s recusal came after Hlophe filed an affidavit saying Musi had made disparaging remarks about him in 2017 during a social gathering with other judges.
Hlophe said in the affidavit: “It was reported to me that Honourable Mr Justice Musi uttered words to the effect that it was not surprising that I would act in the manner described in that judgment … as this was consistent with my controversial character”.
Musi denied the allegation but said he decided to recuse himself in the interests of justice and the judiciary.
“Having considered the manner in which this whole issue has unfolded, the fact that Judge President Hlophe called me and made certain ex parte communications to me without having the other parties there, the interests of justice and obviously the interests of the judiciary — I do not think the judiciary needs this at this stage,” Musi said.
Judicial conduct tribunals consist of three members and since Musi recused himself, the chief justice was tasked with appointing another judge. This has not happened yet.
Who is Hlophe?
Hlophe has been the Judge President of the Western Cape Division of the high court — the most senior judge in the division — since 2000. This is a position he will hold until he retires. He was appointed as a judge in 1995 and, at the age of 36, was the first black judge to be permanently appointed to the Western Cape high court.
During his tenure, the Judicial Service Commission (JSC) received a complaint from the full bench of Constitutional Court judges in 2008 saying that Hlophe had approached two judges — Bess Nkabinde and Chris Jafta — and tried to improperly influence them in a pending a corruption case — commonly known as the arms deal case — involving former president Jacob Zuma and French arms dealer company Thint. This complaint was the catalyst for the institution of the judicial tribunal against Hlophe.
The JSC was established in terms of Section 178 of the Constitution and consists of 23 members. In terms of Section 178 (5) of the Constitution, the JSC is entitled to advise the national government on any matters relating to the judiciary or administration of justice.
Judicial conduct tribunals are meant to form part of the process of holding judges accountable, not just through their judgments being appealed, but through their conduct being held up to scrutiny by their peers.
The process has taken more than a decade because it has been dogged by a series of court cases. As the JSC attempted to deal with the complaint in a formal manner, the constitutionality of the commission’s processes were challenged by various complainants on both sides of the issue. Another reason is that the JSC had to attend to the tribunal against Judge Nkola Motata first, in January 2018.
Could Hlophe be impeached?
If the JSC finds that Hlophe is grossly imcompetent or is guilty of misconduct then he could be removed from office. The JSC will send their findings and recommendations to the president and Hlophe can be removed from office is if the National Assembly calls for him to be removed — through a resolution adopted with supporting votes of at least two thirds of its members.