/ 21 February 2024

MPs vote to remove judge president Hlophe from the bench

Hlophe To Face Disciplinary Tribunal In September
Western Cape Judge President John Hlophe.

More than 15 years after he was accused of trying to persuade justices of the apex court to pervert rulings in favour of Jacob Zuma, the National Assembly on Wednesday voted to remove Western Cape judge president John Hlophe from the bench.

MPs approved a report from the portfolio committee on justice recommending his removal  by 27 against 305 in favour, before dealing with a separate report recommending the removal of Justice Nkola Motata who crashed, drunkenly, into a garden wall in 2007.

They are the first judges to suffer this fate in post-apartheid South Africa, and observers in the legal field have opined that the time these two cases took to draw to conclusion points to weaknesses in the mechanisms for holding members of the judiciary to the codes of the profession. 

Hlophe had for the longest time ably exploited those weaknesses before the Judicial Service Commission (JSC) in August 2021 upheld a finding of gross misconduct by a judicial conduct tribunal and also recommended impeachment.

His legal challenges to the process did not end at that decision.

The vote came just hours after the Western Cape high court dismissed Hlophe’s last-ditch attempt to delay the vote, and inevitable impeachment. 

On Monday last week, Hlophe filed an urgent application to the court asking that the impeachment proceedings be put on hold pending an application he made to the constitutional court last month to set aside the report filed by the portfolio committee in November and its recommendation that he be removed from the bench.

He argued in papers to the apex court that the committee acted unconstitutionally by merely rubber-stamping the decision by the JSC. Its remit, he continued, was rather to review the merits of the decision.

The application was dismissed by Judge Sulet Potterill, who is a member of the Gauteng bench and heard the matter because of Hlophe’s obvious connection to the judges of the division over which he presided.

Potterill faulted Hlophe for self-created urgency, noting that his application to the highest court was not structured to include an urgent interdict.

Hlophe argued that parliament’s duty was to revisit the decision and to adopt rules for a process to impeach judges. But the parliamentary processes required for removing a judge and a sitting president differ markedly and his approach to the apex court was widely seen as desperate and doomed. 

At the time of the parliamentary vote, it had yet to issue directions on his application.

He previously sought, in the Gauteng high court, to overturn the JSC finding that he had committed gross misconduct and should face impeachment

But in a ruling in May 2022, the court said Hlophe’s attacks on the validity of that finding were in the main not grounds for review 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.”

Motata’s impeachment carried by 296 votes to 13.