/ 14 February 2022

Judicial Service Commission cannot get it right, Hlophe’s counsel tells high court

Cape Judge President John Hlophe
Cape Judge President John Hlophe (centre). (Oupa Nkosi, M&G)

Western Cape Judge President John Hlophe’s legal counsel on Monday argued that the finding by the Judicial Service Commission (JSC) that he was guilty of impeachable misconduct was founded on bias and a flawed application of the law.

Advocate Thabani Masuku SC told the court that the JSC failed to apply the correct law when it determined whether the report of the Judicial Conduct Tribunal should be admitted.

Hlophe has since April, when the tribunal recommended his impeachment, maintained that this conclusion was untenable because his actions did not amount to gross judicial misconduct as envisaged in section 177, read together with the Judicial Services Commission Act.

Masuku suggested it was reckless for the JSC to find a judge was not deserving of occupying the bench without due care to apply the correct law and standards, because of the trust invested in judges by the public. 

This trust is premised on a presumption, on the part of the public and among judges with regard to their peers, that they have wisdom and judicial integrity. 

“Without that presumption, judges are vulnerable to attack,” Masuku said; hence, when the JSC erred, the consequences for the judiciary were severe.

The threshold to dislodge that presumption cannot be a low one, he continued.

“It should not be light to assume that a judge who has a discussion with another judge has improper intentions. You have to express a bit more than saying one judge felt uncomfortable with it … Discomfort is not evidence of misconduct.

“The confidence in the judiciary is constantly eroded when the JSC fails to fulfil its duties.”

Deputy Judge President Roland Sutherland noted that Hlophe had spoken of having a mandate, saying that the justices of the constitutional court needed to understand “our history” when he approached justices Bess Nkabinde and Chris Jafta a month apart in the autumn of 2008 to raise a pending ruling relating to the arms-deal corruption case against former president Jacob Zuma.

“In both instances he raised the issue that was critical to his appeal,” he said.

“He talks about having a mandate. He talks about members of the constitutional court needing to learn and understand our history, which is a highly loaded phrase about which we can extrapolate if needs be, but I think all South Africans understand what that means.

“He refers to his associations with ministers of state. He says that the person who is the subject matter of the appeal was about to become extremely powerful and certain people are going to lose their jobs.

“He says all of this to two very junior judges, he being to put it mildly, a heavyweight within the judiciary. If the Judicial Service Commission in the discharge of its functions, drawing on all those facts, concludes that it was gross misconduct, on what basis can we reject … the inference they drew?”

Masuku argued that the entity had egregiously failed in its task, exhibiting unlawful conduct and failing to nod to the Constitution in a manner no court should recognise if it were to respect its constitutional duty.

His co-counsel Michael Donan suggested the court should consider that the two justices approached more than a decade ago did strictly nothing that could suggest they were swayed by Hlophe. 

Masuku further argued that the JSC was not properly constituted in August when it concurred with the finding of the tribunal and referred the matter to the speaker of parliament.

On bias, Hlophe argues that Justice Sisi Khampepe and Gauteng Judge President Dunstan Mlambo were disqualified from being part of the meeting at which the JSC reached its final decision, because both had made adverse court rulings against him in the winding course of the misconduct complaint. 

Regarding Khampepe, he not only contends that it was improper for her to be present, but also that she had no delegation because she was no longer officially acting as head of the judiciary, that role having reverted to Acting Chief Justice Raymond Zondo 

Further, Judge Boissie Mbha of the supreme court of appeal (SCA) lacked the standing to represent the head of the appellate court. An affidavit by SCA Judge President Mandisa Maya failed to put this matter to rest, Masuku added.

“There is no basis on which Justice Mbha’s involvement in the JSC can be saved,” he said.

Masuku said if Khampepe and Mbha were not lawfully present, the decision taken by the JSC on 25 and 26 August lacked the necessary number of votes.

“If we knock out justices Khampepe and Mbha,  then the JSC simply did not have the majority to make the finding it did.”

Deputy Judge President Aubrey Ledwaba asked him to clarify whether he meant the commission was not quorate or whether the number of those who voted to endorse the finding of the tribunal would no longer carry the day.

Ledwaba noted that eight voted in favour and four against. 

But Masuku said precedent argued that at least seven members must endorse a decision for it to be binding, and because Khampepe and Mbha were not lawfully present it meant only six voted in favour.

Sutherland asked whether, if the court agreed to set aside the JSC’s decision, a proper remedy would be to refer the matter back to it, but Masuku replied that the commission was simply no longer “dependable”.

“Thirteen years down the line, the JSC still cannot get it right,” he added.

The tribunal found that Hlophe seemed to have been on a politically motivated “mission” to sway justices Jafta and Nkabinde in 2008 when he raised a matter relating to the arms-deal charges against Zuma with them.

Hlophe was previously represented by Courtenay Griffiths QC, but the office of the state attorney informed him last year that he would not get state funding for his court bid to have the JSC decision set aside.