/ 5 May 2022

Hlophe loses high court bid to overturn misconduct finding

Hlophe has been the Judge President of the Western Cape Division of the high court — the most senior judge in the division — since 2000.
Former Western Cape Judge President John Hlophe.

The Gauteng high court has dismissed Western Cape judge president John Hlophe’s review application to overturn the Judicial Service Commission (JSC) finding that he had committed gross misconduct and should face impeachment.

The court said several of Hlophe’s attacks on the validity of that finding were not review grounds but rather “claims that a disappointed litigant may offer in an appeal”, along the lines that a decision is against the weight of evidence.

“Such grievances do not warrant attention by this court.”

With regard to the remainder of the grounds advanced, Hlophe needed to demonstrate that the JSC had acted irrationally or exceeded its powers and failed to do so, said judges Roland Sutherland, Aubrey Ledwaba and Margie Victor.

Instead Hlophe had made vague submissions that the JSC had flouted procedure and the principle of legality without setting out what it had done or omitted to do that constituted impropriety.

The JSC’s finding, reached over two days in late August last year, stemmed from a complaint filed by the constitutional court after he sought to sway justices Bess Nkabinde and Chris Jafta, in 2008, on a pending ruling relating to the corruption case against French arms manufacture Thales and a then aspirant president, Jacob Zuma.

The court described the events and extensive litigation that unfolded over more than a decade after the complaint was lodged as  “probably unique in the history of our judiciary”.

Hlophe’s challenge was twofold.

Apart from arguing that the decision was flawed per se, he submitted that it could not stand because the JSC was not properly constituted when it met to deliberate the finding by the Judicial Conduct Tribunal four months earlier that he had breached section 165 of the Constitution when he canvassed Nkabinde and Jafta.

Here, he ironically relied on the precedent set earlier in the course of litigation regarding the complaint against him when a decision not to proceed in 2009 was overturned because the commission was not properly constituted. 

According to Hlophe, constitutional court Justice Sisi Khampepe could not rightly preside over the August meeting because the role of head of the judiciary had reverted to then deputy chief justice Raymond Zondo, and that Judge Boissie Mbha of the supreme court of appeal lacked the standing to represent the head of the appellate court. 

Further, he alleged that Gauteng judge president Dunstan Mlambo ought not to have been present because he was conflicted, having sat on the supreme court of appeal when it ruled on one of the many applications that marked the trajectory of the complaint against Hlophe. 

But the judges said the law allowed the JSC to appoint an acting chairperson, in this case Khampepe, if neither the chief justice nor the deputy chief justice were available. 

And if the law did not make explicit provision for a replacement for the president or deputy president of the appellate court if neither were available, the high court was of the view that on a purposive, constitutional interpretation, it should be allowed to prevent paralysis of the JSC.

The intent of section 178 of the Constitution, which provides for the establishment of the JSC and determines its composition, was to regulate judicial affairs and to ensure the integrity of the judiciary.

“To read it restrictively with the effect that a decision cannot be made by the JSC on the question of whether a judge has committed gross misconduct because of a deviation from the default composition requirements, would fly in the face of the need to address infractions into the integrity of judicial independence.”

Expanding on the importance of the JSC, the court said when appointing judges it serves as the  selection panel of the nation, adding: “When disciplining judges, the JSC serves as the jury of the nation.”

In this role, he said, its credibility rested on the dominance of members who are professional lawyers rather than politicians and it was vested with the authority to pronounce on the ethical standards for judges.

Mbha represented the appellate court because both SCA president Mandisa Maya and deputy president Xola Petse had recused themselves from dealing with the complaint against Hlophe. Had he not been allowed to do so, the JSC would not have been quorate and able to form a majority and perform its function.

The narrow reading of the law advocated by Hlophe would have led to the absurd situation” where he would forever be immune from sanction because neither the president nor the deputy president of the SCA could sit in his matter.

“As we know from the rules of interpretation, an interpretation should lead us away from absurdity, not towards it.”

With regard to Mlambo, the court found that Hlophe failed to set out objective facts to argue that he was not impartial.

It also dismissed his plea that the matter be referred to the National Assembly for reconsideration.