Hlophe accuses high court of trying to rewrite the law

Western Cape judge president John Hlophe has accused a full bench of the Johannesburg high court of misconstruing the Constitution and case law to find that the Judicial Service Commission (JSC) was properly constituted when it concluded he should be impeached.

In his application for leave to appeal against the high court’s dismissal of his challenge to that decision, Hlophe argues that the high court seemingly did so to save the JSC from the consequences of not constituting itself in accordance with the law.

Instead, he said, the court should have punished the commission for a litany of errors made in 13 years of investigating him for misconduct.

“The motive for the court in embarking on a new approach to interpreting section 178 to avoid what it calls a paralysis … [gives] rise to a credible inference of a court intent on protecting unlawful proceedings for a purpose unrelated to the Constitution itself.”

Hlophe had argued before the high court that constitutional court Justice Sisi Khampepe could not rightly preside over the August meeting where it endorsed the findings of the Judicial Conduct Tribunal against him because the role of head of the judiciary had reverted to then-deputy chief justice Raymond Zondo, and that judge Boissie Mbha could not serve as a substitute for appellate court president Mandisa Maya.

Maya and SCA deputy president Xola Petse had recused themselves from dealing with the complaint against him.

The high court found that both Khampepe and Mbha’s presence were allowed, even if the law did not expressly sanction the latter. A reading that did not allow the JSC to deviate from default composition requirements and rendered it unable to decide if a judge had misconducted himself would undermine the need to protect judicial independence.

Hlophe countered that the court erred in dismissing fidelity to the letter of section 178 as mere formalism. 

He disputed that Maya and Petse were irredeemably conflicted, saying that the court’s conclusion that he was seeking to immunise himself from impeachment by arguing that in their absence the JSC could not proceed was “alarmist”.

The JSC’s finding stemmed from a complaint filed by the constitutional court after Hlophe sought to sway justices Bess Nkabinde and

Chris Jafta, in 2008, on a pending ruling relating to the corruption case against French arms manufacturer Thales and then-aspirant president Jacob Zuma

On the merits, Hlope maintained that it did not meet the threshold to misconduct and that no harm was done. 

He said judges too had a right to free speech.

“It is not consistent with the constitutional standard of gross judicial misconduct to remove a judge for private remarks made to a friend — who on the evidence was uncomfortable with them — but did not consider them to mean anything in relation to his or her duty to deliver a judgment.”

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