MPS give Hlophe three weeks
An initial letter from the suspended judge president revisited arguments he raised in his failed court bid to overturn a finding of impeachable misconduct
Parliament’s portfolio committee on justice on Tuesday resolved to give suspended Western Cape judge president John Hlophe until 15 November to make final representations as to any extenuating circumstances mitigating against his removal from office for gross misconduct.
The deadline was proposed by committee chairperson Gratitude Magwanishe, and agreed to somewhat reluctantly by MPS, who said that there should be no delay in finalising an impeachment process that comes 15 years after justices of the constitutional court first filed a complaint against Hlophe for trying to influence now retired judges Chris Jafta and Bess Nkabinde.
The Judicial Conduct Tribunal in April 2021 concluded that Hlophe’s approaches to Jafta and Nkabinde in 2008 amounted to gross misconduct. It said he “appeared to have been on a mission” when he met them a month apart to discuss pending matters relating to the arms deal corruption charges against Thales and then aspirant president Jacob Zuma.
The Judicial Service Commission (JSC) upheld the decision in August that year, while also recommending that Hlophe be impeached, which is a decision that falls to the National Assembly where a vote needs to be carried by a two-thirds majority.
Hlophe turned to the high court to challenge the decision but his application was dismissed by a full bench in May last year.
In a recent letter to parliament, Hlophe reiterated several arguments he had raised in his failed review bid. Parliamentary legal adviser Barbara Loots on Tuesday told the committee that MPS were free to decide whether they believed these carried weight, though all of them had been dismissed by the high court in May last year, in what she referred to as the Sutherland judgment.
The high court held that Hlophe’s attacks on the validity of the JSC’S finding were not proper review grounds but rather “claims that a disappointed litigant may offer in an appeal”.
“Such grievances do not warrant attention by this court,” it said.
ANC MP Qubudile Dyantyi said on Tuesday there was no need for the committee to waste time weighing arguments that had been dealt with definitively by the court.
“Having listened to this and applied our mind on the Sutherland judgment, comparing that with the issues in Judge Hlophe’s letter, I certainly want to say I stand here satisfied about these kinds of responses because everything there is answered in that judgment,” he said. “We are not going to have to repeat this.”
Turning to whether the committee should invite public comment on the question of whether Hlophe should be removed from office, he said that he believed there was no need. “Ours is not an inquiry — the JSC has concluded an inquiry, because that is what section 177 [of the Constitution] dictates and, therefore, there will be no public involvement into an inquiry because ours is a very limited role.”
Dyantyi’s second argument on the subject was that MPS were elected public representatives, therefore they could be entrusted with deciding whether it was in the public interest to remove Hlophe from office.
Furthermore, the committee’s work was done in view of the public.
He proposed that Magwanishe write to Hlophe to indicate that the committee had applied its mind to his letter, and barring any further submissions, “the committee is now proceeding with its work as planned”.
Given that the cases of Hlophe and retired high court justice Nkola Motata mark the first time since 1910, when the Union of South Africa was born, that parliament has been called upon to deal with the impeachment of judges, Magwanishe said it was important to reach clarity on whether section 177 demands public input. It does not, Dyantyi said. Democratic Alliance MP Glynnis Breytenbach concurred and pressed for the committee to proceed without delay in both cases.
“I really am very concerned about the delays in this matter. I understand that parliament has not delayed unduly, but we need to get this done, and both of these judges have had extensive time to set up extenuating circumstances ad nauseam.”
Breytenbach added that public input would not bring added legal value to the process.
“All the members represent the public. That is our job.
“And our job going forward now is to consider, politically speaking, whether judge president Hlophe should be impeached or not and we can’t abdicate that responsibility to opening this up for public participation,” she said.
“Everybody knows those people who like Judge Hlophe will write long, unsubstantiated letters supporting him. Those people who do not like him will write long, unsubstantiated letters not supporting him and we will be no further.”
After losing in the high court, Hlophe initiated an appeal to the supreme court of appeal but the matter was taken off the roll after he failed to file submissions on time. His stated reason for the lapse was that he could not afford to copy the full record of the matter. He has since filed suit against the solicitor general for full cover for his legal fees.
However, [legal adviser] Loots confirmed on Tuesday, this does not serve as an impediment to parliament proceeding with Hlophe’s impeachment because it does not concern litigation directly against the JSC.