Western Cape Judge President John Hlophe has filed an urgent application with the high court in Johannesburg to stay his likely impeachment and review the recommendation of the Judicial Service Commission (JSC) in this regard.
He argues that the JSC was not properly constituted last month when, almost 13 years after the fact, it affirmed a finding made in April that he committed gross misconduct by raising a pending ruling relating to former president Jacob Zuma’s corruption case with two constitutional court justices.
It recommended that he be impeached by the National Assembly, which has set the process in motion by referring the finding to the portfolio committee on justice.
Hlophe is also attempting to interdict President Cyril Ramaphosa from suspending him while parliament is seized with the process.
In court papers, he seeks to take advantage of the musical chairs that ensued at the head of the judiciary after outgoing Chief Justice Mogoeng Mogoeng took extended leave. Hlophe argues that legal precedent in his own matter means at that on 25 and 26 August, when JSC reached finality on the complaint against him, that body was not lawfully constituted.
“It is for the court to decide whether the 25 August 2021 meeting of the JSC where the chief justice, deputy chief justice, president and deputy president of the SCA [supreme court of appeal] were absent, was properly constituted.”
Constitutional Court Justice Sisi Khampepe was present but was no longer officially acting as head of the judiciary, that role having reverted to Deputy Chief Justice Raymond Zondo roughly halfway through Mogoeng’s leave.
This means she lacked the relevant status as required by section 178(7) of the Constitution, according to Hlophe.
Further, Judge Boissie Mbha of the supreme court of appeal lacked the standing to represent the head of the appellate court.
Hlophe relies on the precedent set when then Western Cape premier Helen Zille challenged an earlier decision by the JSC in the supreme court of appeal by arguing that the body was not properly constituted when it initially dismissed the gross misconduct charges against him in 2009.
Zille had successfully argued that the JSC lacked a quorum, compelling the JSC to reopen the process.
“On the premier of the Western Cape judgment of the SCA referred to above, the JSC findings are a nullity,” he says in his affidavit. “There exists substantial doubt about the conduct of the JSC, its impartiality and the correctness or reasonableness of its findings.”
Hlophe argues that his removal from office would be a “momentous” step, and that he would have no recourse should a two-thirds majority of MPs adopt a resolution in line with the recommendation of the JSC.
“Once removed from office by the National Assembly, the guillotine would have fallen and I would be forced out of office on the basis of a resolution that was based on wrong findings made by the JSC.”
He maintains that the recommendation was deeply flawed because his actions did not amount to gross judicial misconduct as envisaged in section 177 read together with the Judicial Services Commission Act 9 of 1994.
In April, the Judicial Conduct Tribunal found that Hlophe seemed to have been on a politically motivated “mission” to sway justices Chris Jafta and Bess Nkabinde in 2008 when he raised a matter relating to the arms deal charges against Zuma with them.
In August, the JSC concurred and referred the matter to the speaker.
Hlophe contends that the Judicial Conduct Tribunal failed to set out a clear statutory charge, while it maintains that it was concerned rather with judicial probity. Therefore he begs the high court to set aside the findings and the recommendation and acquit him on all charges.
He said it was incumbent on the high court to articulate the correct constitutional standard for gross misconduct in terms of section 177 of the Constitution to strengthen the integrity of the judiciary,
“This goes far beyond me and goes to the heart of the correct legal and ethical standard by which any judge in South Africa should be found guilty of gross misconduct.”
The presidency has refused to be drawn on whether Ramaphosa planned to suspend Hlophe.
Hlophe argues: “I should not be prejudiced by a suspension from judicial office in circumstances where I am able to demonstrate that the JSC’s findings were not only wrong on the law, but a complete disregard of the facts and evidence relevant to determining whether I am guilty of gross judicial misconduct.”
On bias, Hlophe argues that Khampepe and Gauteng Judge President Dunstan Mlambo were disqualified from the August meeting where the JSC reached its final decision, because both had made adverse court rulings against him in the winding course of the misconduct complaint.
Western Cape Premier Alan Winde, he said, was resolutely hostile to him, presumably because the Democratic Alliance had adopted an immutable position on the matter years ago.
Legal minds believe there is a chance that Hlophe’s application may succeed. Should it, this would be another blot on the copy book of the JSC in the space of months. It has conceded to rerun its interviews of candidates to fill two of the vacancies on the constitutional court, after the Counsel for the Advancement of the South African Constitution filed papers arguing that the process was irrational.
Hlophe references this, saying in that instance Ramaphosa accepted that he should not proceed to act on the recommendations of the JSC until the lawfulness of its conduct was determined by the court.
The same applied in his case, he submitted, and should the president proceed to suspend him, he may fall foul of section 165 of the Constitution.