/ 15 February 2022

Hlophe is trying to place impeachment in limbo: Ngcukaitobi

State Capture Report: Judge Rules In Favour Of Opposition
Acting Judge Tembeka Ngcukaitobi stressed: “An accused cannot solely rely on the ‘body language’ of a rape victim to override his or her express words.” (Photo by Felix Dlangamandla/Foto24/Gallo Images/Getty Images)

Western Cape Judge President John Hlophe’s court bid to avert impeachment was not based on a sound legal argument but a strategy of disqualifying every available judge from upholding the decision that he was guilty of gross misconduct, the Johannesburg high court heard on Tuesday.

Advocate Tembeka Ngcukaitobi, for the Judicial Service Commission (JSC), stated at the outset of his pleading that the case was about the independence of the judiciary.

He argued that there was no greater threat to this principle than one that came from within the judiciary’s own ranks, and that Hlophe was guilty of undermining it when he approached two justices of the Constitutional Court in 2008 to discuss a pending appeal ruling relating to the arms-deal corruption case against Jacob Zuma.

Hlophe is seeking to have set aside the finding of the judicial conduct tribunal, endorsed in late August by the JSC, that he face impeachment for seeking to sway justices Bess Nkabinde and Chris Jafta.

However, Ngcukaitobi said Hlophe’s argument in law was so ill-conceived that the court, in judging his review application, needed to concern itself mainly with his technical argument that the commission was not quorate when it took the decision.

Conflict of interest

On Hlophe’s version, put forth by advocate Thabani Masuku on Tuesday, there were, in fact, only admissible six votes in favour of impeachment because justices Sisi Khampepe and Boissie Mbha lacked proper delegation when they endorsed the decision; hence, it was not carried by a majority.

Masuku argued that Khampepe was no longer the acting head of the judiciary because the role had reverted to Deputy Chief Justice Raymond Zondo and that Mbha could not represent the Supreme Court of Appeal (SCA), because the law did not allow for any substitute for the president or deputy president of that court.

Ngcukaitobi said the logical outcome of this last argument was that the JSC would be irreparably hamstrung on the matter because both SCA president Mandisa Maya and deputy president Xola Petse had declared a conflict of interest.

In Maya’s case, she had deposed an affidavit explaining that she had known Hlophe since 1994 and had worked with him both at the electoral commission and in academia. Petse has known Hlophe professionally for more than 40 years and also described him as having been a friend socially. 

Ngcukaitobi said although not every member needed to be present for a decision to be valid, the presence of the chief justice and president of the SCA, or their designated substitutes, were required by law. However, case law dictated that a decision of the JSC would not be regarded null if they were absent, provided a sound reason were given for their absence.

He then noted that Hlophe did not contest the justification for the absence of Zondo, Maya and Petse when the JSC met to mull the finding of the tribunal.

“It was open to Hlophe to contest the justification of the JSC but he did not; instead, he embraced that justification, so it is clear that there is a good reason for the non-attendance of the designated member,” Ngcukaitobi said.

Instead, Hlophe sought to disqualify those who were delegated to replace them.

But, Ngcukaitobi said: “It is also clear that there is a good reason for their replacement.

“It was necessary that there should be somebody sent to the JSC so that the JSC did not find itself without a quorum. Let’s face it — it was necessary that Khampepe should attend; it was necessary that somebody from the SCA should attend.

“If you did not do that, you would have been faced with an inquorate JSC.”

Section 178

Masuku has made much of the fact that section 178 of the Constitution is silent on substitution of the president of the SCA by anybody other than the deputy president of that court.

But Ngcukaitobi said section 178 should not be read in a vacuum, but in a manner that was compatible with the rest of the Constitution, “where one of the core principles is the safeguarding of judicial independence”.

“Then you should ask yourself: Should I give an interpretation to the Constitution that ultimately enables the erasure of judicial independence or should I give a sensible interpretation to the Constitution?”

Ngcukaitobi said the case law argued for a sensible and pragmatic interpretation, and an argument that Mbha was not allowed to be seconded to represent the SCA would create an absurdity in that the JSC would be inquorate when a head of court were unavailable.

It would practically, here, have meant that the report of the tribunal “lives in limbo — it is never considered at all” because the JSC could never be properly constituted to consider it.

“When we go from Hlophe’s reasoning in the matter, we know that he is happy that Maya and Petse were conflicted and did not attend. He has no difficulty with that, but he does not want Mbha to have been present, Ngcukaitobi said.

“We also know that he does not want Khampepe to have been present, and where do we go with those two outcomes? We come to an absurd outcome — utterly absurd.”

Judicial independence

Ngcukaitobi said Hlophe was found by the tribunal to have committed one of the most serious breaches possibly by a judge.

“He violated section 165, which is the section that says judges must uphold judicial independence. The absurdity arises because according to him we are in a state of complete paralysis. But it is a state of paralysis that he has manufactured.”

Ngcuikaitobi said as a result of the extensive litigation around the matter to date, many judges would have to recuse themselves when the matter served before the JSC or any of the superior courts, and Hlophe was now seeking to exploit this fact. 

“The three of you are now implicated,” he said to judges Aubrey Ledwaba, Roland Sutherland and Margaret Victor, who are hearing the review application. 

“So we are in a situation where, through the sheer lethargy of the JSC, and the constant litigation, eventually all the judges will potentially be said to be conflicted. Hlophe’s case will simply never be dealt with at all by the JSC. 

“Now, you have to ask yourself if such an absurd outcome is contemplated within the scheme of the Constitution?”

If not, Ngcuikaitobi said, it was a question of finding a sensible way of dealing with a scenario that is not regulated expressly by the Constitution. “Once you actually take a step back and you reflect on what Hlophe actually wants, it is impossible but to come to one conclusion: that these absurd outcomes that he contends for are also self-serving,” he said. “What he is gunning for is a regime in which he is immunised from taking the consequences of his action.”

Avoiding accountability 

He noted that the JSC has suffered criticism for the many delays in dealing with the matter. It was among Hlophe’s arguments that this had caused him prejudice.

“The passage of time is being exploited to avoid accountability,” Ngcukaitobi asserted. 

“It is now time that the matter should be put to bed. What that means is that the JSC has performed its function. It has decided that Hlophe’s conduct is impeachable. The matter now must go to the politicians. They must decide whether Hlophe must be removed.’

On Monday, Masuku was asked by Ledwaba and Sutherland whether the remedy his client wants is for the decision of the tribunal to be referred back to the JSC for reconsideration, once it was constituted in a manner more satisfactory to his client.

Masuku said not, adding that the commission was simply no longer “dependable”.

He has argued that the commission’s decision was deeply flawed because Hlophe’s actions did not amount to gross judicial misconduct as envisaged in section 177, read together with the Judicial Services Commission Act.