John Hlophe was impeached for trying to sway two apex court justices to decide applications linked to the arms deal in Jacob Zuma’s favour. Picture: Werner Beukes/SAPA
Western Cape Judge President John Hlophe argues in a review application that the Judicial Service Commission (JSC) flouted the law when it recommended last month that President Cyril Ramaphosa suspend him pending a parliamentary impeachment process.
In papers filed on Thursday at the Johannesburg high court, he asks that the court declare the decision to advise the president to do so unlawful, unconstitutional and invalid.
He argues that his pending appeal of the high court dismissal of his bid to review the JSC’s finding that he was guilty of impeachable misconduct, brought into application section 18 of the Superior Courts Act.
“Section 18 of the Superior Courts Act 10 of 2013 provides that the operation and execution of a decision which is the subject of an application for leave to appeal or an appeal, is suspended pending the application or the appeal,” he said.
“Accordingly the advice of the JSC to the president is not competent in light of the pending appeal proceedings in the SCA, particularly since the JSC did not deem such advice necessary since the decision of the tribunal in April 2021 until June 2022.”
Hlophe argues that when the high court granted him leave to appeal, it did not attach any condition “which justifies the JSC’s conduct”.
Hence, the JSC’s recommendation to Ramaphosa to suspend him amounted to an unlawful attempt to subvert the Superior Courts Act. It is irrational and unreasonable, and therefore an abuse of its powers, he contends.
He added: “It is noteworthy that the JSC’s advice to the president is subject to a condition that I be allowed to finalise past matters heard and reserved judgments during the period of suspension.
“This means that the JSC considers that I would still be worthy to perform judicial functions while on suspension.”
The JSC made the recommendation to Ramaphosa on 25 July.
Hlophe said media reports suggested that the commission was not properly constituted when it resolved to advise the president to suspend him.
“If that is true, the suspension advice of the JSC would be unlawful and the president should not be made to consider advice of an unlawfully constituted JSC body.”
He said he would ask the JSC for the full record so as to establish whether, in fact, it was properly constituted.
Hlophe’s decision to appeal against the high court ruling and his application to set aside the JSC’s advice signal that the 14-year saga sparked by his approaches to judges Bess Nkabinde and Chris Jafta in the autumn of 2008 on pending cases relating to the arms deal corruption is far from over.
The Judicial Conduct Tribunal in April last year found that Hlophe had violated section 165 of the Constitution by attempting to influence judges to betray their oath of office, while flouting the principle that bars judges from broaching a pending matter with those seized with it.
The intervening years saw the complaint repeatedly mired in litigation, resulting in it being halted, reversed and eventually returned to the panel for investigation in 2018.
In August 2021, the JSC, in a majority vote, endorsed the finding of the tribunal and held that Hlophe should be impeached.
He went to court to overturn the JSC’s decision but the high court dismissed his application in May, with a full bench saying he had failed to raise proper grounds for review.
The court nonetheless granted him leave to appeal because the case raised significant matters of public interest. The application had been twofold, with Hlophe also seeking to interdict the JSC from initiating his suspension.
The JSC agreed to place a decision on suspension on hold pending the high court ruling, but that this reprieve did not extend to any appeal.
Hlophe in his application reprises his argument in the high court review application that the JSC risked violating the very principle of the independence of the judiciary it sought to protect by recommending his removal.
He argues that the recommendation to suspend a member of the judiciary must be reasonable, and not arbitrary, so as to safeguard the independence of the bench, the integrity of judicial office and the public’s confidence in the administration of justice.
And he again asserts that the whole disciplinary process was tainted by the interference of retired constitutional court justice Johann Kriegler, the chairman of Freedom Under Law (FUL), and the Democratic Alliance, and accuses both of seeking to seize control of the JSC.
“Ultimately, this has resulted in a subversion of the rule of law, and defeating the ends of justice.”
FUL, the DA and the Helen Suzman Foundation last month urged Ramaphosa to waste no time in suspending Hlophe.
However, the presidency said he would await formal communication from the JSC and then apply his mind to the matter.