No-one is above the law
For the first time in SA’s history, two high court judges found guilty of gross misconduct faced the national assembly’s hammer of impeachment. More than two thirds of MPs voted to remove suspended Western Cape judge president John Hlophe and retired Gauteng judge Nkola Motata from office.
This shows that no-one is above the law. Even the most powerful and those we regard as the guardians of the constitution are subject to the laws they swore to uphold.
The vote reminds us that even judges can be judged, and serves a real world answer to the question posed in the first century by Roman poet Juvenal: Quis custodiet ipsos custodes?
(“Who watches the watchmen?”). In this case, the judges were adjudicated by fellow judges, including the chief justice, MPs, senior legal practitioners and academics.
The Judicial Service Commission (JSC) conducted the investigations into misconduct and made recommendations regarding removal, but it is the national assembly that has the power to decide whether these judges should be removed.
Once a national assembly resolution to a remove a judge is passed, it is sent for confirmation to the president, who is legally obliged to remove the judge from office. This means judges’ impeachment cases move through all branches of government. We now await President Cyril Ramaphosa’s confirmation.
Hlophe’s case goes back to 2008 when all the justices of the Constitutional Court complained that he tried to influence the outcomes of pending court cases connected to corruption charges against former president Jacob Zuma. In 2021, the JSC found Hlophe guilty of gross misconduct. However, the matter could not be finalised by the national assembly until 2023, due to his various court battles. This year, Hlophe’s last rounds of litigation saw him try at the Constitutional Court, then file an urgent appeal to the Western Cape high court, which he once led. The high court dismissed his application hours before the vote.
Motata was convicted in 2007 for the criminal offence of drunk driving and later found to have been dishonest during his criminal trial. After lengthy deliberations at the JSC, which punished him with a fine, a Supreme Court of Appeal finding in June 2023 recommended his removal. The appeal court ruled the JSC had “no regard whatever for the damning factual findings” of various courts and tribunals regarding Motata. The JSC was obliged to make a recommendation to parliament for his removal.
While Motata is retired, he still has judicial obligations and is thus regulated by the JSC as he has been receiving lifetime benefits. Once Ramaphosa confirms the national assembly’s decision, both men will lose those benefits.
Our courts have a huge backlog of cases and no-one benefits when judges have to step aside under such circumstances. But it should not have taken almost two decades for the cases against the judges to reach finality. That is not in the interests of justice.
However, it is gratifying to see the rule of law upheld, especially when those sworn to uphold it are held to account. It shows that SA’s laws are bigger than those who guard them.