JSC is self-correcting, says Thuli Madonsela

A day after the Judicial Service Commission (JSC) voted to impeach Western Cape judge president John Hlophe, former public protector Thuli Madonsela said: “I think the JSC people are self-correcting and doing things the best that they can.”

But she intimated she would have done things differently when it came to Hlophe.

“With regard to Judge Hlophe I think I choose not to comment on that. I just think the JSC is doing what it thinks it must do. That doesn’t mean I would do things their way,” she said.

The decision to impeach Hlophe comes hardly a week after it did an about-turn and agreed to rerun interviews for two Constitutional Court vacancies after the Council for the Advancement of the South African Constitution (Casac) litigated on the way the JSC ran the interviews.

Retired Constitutional Court judge Johann Kriegler labelled the JSC a “concern” for more than a decade. Unlike Madonsela, he was among those doubting that recent moves signalled more than minor improvements at the JSC. To critics, the JSC lacked the impartiality required, had a feeble track record of bringing offending judicial officers to book and became skewed by party-political agendas when it was obliged by law to uphold the highest ethical standards in the judiciary.

Madonsela said: “I’m thinking that the JSC has a growth mindset, has grown from that bad experience. In bringing personal politics into it, it’s almost like bargaining that ‘if you find in my favour you will be guarantee that you’ll be elevated’ and I think, hopefully, the JSC has learnt from that.”

Events of the past few weeks seem to point in that direction, but critics say it still has a long way to go. Freedom Under Law CEO Nicole Fritz said: “Explicit political ends were sought to be furthered by that process.

Political deliberations formed part of that […] when they should not have.”

Legal interest groups, such as Casac which took the JSC to court, criticised the JSC’s interviews in April. The rerun dates are pending and interviews for two further Constitutional Court vacancies are scheduled from October 4 to 8.

The JSC’s latest decision on Hlophe comes 13 years after it received a complaint alleging gross misconduct. There is a slew of other adverse claims against him. While Hlophe will be the first SA judge to face an impeachment vote, another high court judge came close.

Judge Nkola Motata narrowly escaped an impeachment vote in 2018 after his high court conviction for drunk driving. In 2007 his car ploughed into the wall of home in Johannesburg.

While the Judicial Conduct Tribunal recommended impeachment for gross violation, the JSC found Motata guilty of a lesser charge of misconduct. It ordered him to pay a R1.1m fine to a study institute. Motata retired with all benefits.

On Wednesday, the JSC announced its decision that Hlophe was guilty of gross misconduct 13 years after 11 Constitutional Court judges unanimously reported him to the JSC. In 2008, they raised grievances against Hlophe for talks he initiated with apex court judges on an arms deal case involving former president Jacob Zuma, which they were set to hear.

The JSC’s spokesperson, advocate Dali Mpofu, announced on Wednesday the JSC’s decision “to uphold the report and recommendations of the [JCT] handed down on 9 April 2021.” The JCT had already found Hlophe guilty of gross misconduct after a thorough process.

The JSC undertook to provide within 24 hours the reasoning behind the majority and minority decisions on impeachment. Despite the severe censure, Hlophe still leads the Western Cape High Court. Several legal practitioners told Business

Day it had become an increasingly toxic workplace.

Eight commissioners voted in favour of the JCT’s report and four voted against it. Mpofu said the JSC would gather input on whether it should or should not press President Cyril Ramaphosa to suspend Hlophe pending the impeachment vote.

“In line with the principles of natural justice, the JSC has invited the parties to show cause,” Mpofu said.

Hlophe’s impeachment would be a first test of the impeachment process for offending judges in democratic SA: never before has the National Assembly voted on impeaching a judge.

It would not be the first time a judge was at jeopardy of facing such a vote, however, in the light of the Motata matter.

Mbekezeli Benjamin, a researcher at Judges Matter, an organisation that monitors the hiring process for judicial officers, said some accountability had “finally” taken place with regard to Hlophe.

“It is a positive step,” said Benjamin. “Of course, we all would have wished a decision could have been taken many years ago. Now it is really up to the institution of parliament in particular to now move with speed.”

Nicole Fritz said that she expected far better from the commission. “I think you have got to see a lot more from the JSE: a proven track record of good performance.”

Benjamin and Fritz were eager for Ramaphosa and the National Assembly to act swiftly, 13 years after Hlophe’s gross misconduct saga began.

Fritz said Ramaphosa suspending Hlophe would not be a punitive measure. Rather, she asserted, it would halt “any further tainting of justice” pending the impeachment poll.

Benjamin said: “It would be very difficult for him not to uphold the recommendation to suspend. We hope that also happens quite quickly.”