JSC rejects call to exclude Hlophe
• He ‘is still judge president’, despite misconduct finding
The Judicial Service Commission (JSC) has rejected a recommendation by civil society group Freedom Under Law for judge president John Hlophe to be removed from interviews of candidates for appointment as Western Cape high court judges, saying he has not been suspended from his office.
The Judicial Service Commission (JSC) has rejected a recommendation by civil-society group Freedom Under Law (FUL) for judge president John Hlophe to be removed from interviews of candidates on Friday for appointment as Western Cape High Court judges.
“Judge president Hlophe is still the judge president of the Western Cape division of the high court, and the tribunal is yet to consider the charges levelled against him. He has [not] been suspended from his office as the judge president and continues to carry out his judicial responsibilities,” the JSC said in its response to the group on Thursday. The group has warned that Hlophe’s participation will compromise the interviews.
In its letter to the JSC, the group referred to the decision by the Judicial Services Tribunal on
April 9, when Hlophe was found guilty of misconduct in trying to influence two Constitutional Court judges improperly on pending judgments in cases pertaining to the legality of search and seizures in the Jacob Zuma/Thint corruption matter.
Justices Bess Nkabinde and Chris Jafta complained that Hlophe had attempted improperly to influence the outcome of the matter in favour of Zuma.
In its letter to the JSC, FUL said: “Judge President Hlophe has been found guilty of improperly seeking to interfere with, and influence, the adjudicative functions of SA’s highest court.
“It is difficult to envisage a graver situation in the context of a judge. This is no longer merely an allegation: it is a final factual and legal finding of an independent statutory tribunal appointed by the JSC itself.”
FUL maintains that the JSC has taken no steps to address the tribunal’s decision, instead referring the matter to the National Assembly and recommending that President Cyril Ramaphosa suspend Hlophe with immediate effect.
The civil-society group contends that Hlophe’s participation in the interviews is a result of the JSC’s “failure to deal with this matter properly and expeditiously”. The JSC is scheduled to meet on June 4 to consider the tribunal’s decision.
However, FUL is of the opinion that “there is no reason a decision on the confirmation of the tribunal decision cannot be made on June 4. A decision to recommend suspension should be made even earlier, for obvious reasons.
“Judge President Hlophe continues to wield formidable power and authority as the head of the Western Cape division of the high court,” FUL said. It has also warned that Hlophe’s participation in those interviews — or if the JSC fails to take the decisions in relation to his suspension and/or removal expeditiously — would impugn the integrity of the judicial selection process.
“The decisions [that will be reached] at the meetings on April 23 2021 will be liable to be set aside. The JSC will be aware that the improper participation of one member of a multimember body is sufficient to invalidate the proceedings of that body,” FUL said.
In its response to FUL, the JSC said that it had decided against recommending Hlophe’s suspension.
“The absence of this suspension from office or a guilty verdict by the tribunal, in our view, indicates that there is no bar preventing judge president Hlophe from carrying out his responsibilities as the judge president of the Western Cape High Court. And part of his responsibilities is to participate in the selection of candidates for judicial appointment.”
The organisation has given the JSC a deadline of 4pm on Thursday to state when it intends to take a decision on the recommendation to suspend Hlophe and to clarify that it intends, at its meeting on June 4, to take a decision on whether to confirm the tribunal decision and refer Hlophe’s impeachment to the National Assembly.
HE HAS [NOT] BEEN SUSPENDED FROM HIS OFFICE AS THE JUDGE PRESIDENT AND CONTINUES TO CARRY OUT JUDICIAL RESPONSIBILITIES