Hlophe will have Gauteng judge
The application by the attorney of Western Cape judge president John Hlophe to have a judge from a division other than Gauteng hear his application to have the decision by the Judicial Service Commission to impeach him set aside was rejected on Wednesday by deputy judge president of the Gauteng division Roland Sutherland.
The application by the attorney of Western Cape judge president John Hlophe to have a judge from a division other than Gauteng hear his application to have the decision by the Judicial Service Commission (JSC) to impeach him set aside was rejected on Wednesday by deputy judge president of the Gauteng division Roland Sutherland.
Sutherland presided over an initial hearing of Hlophe’s application, during which the first part dealing with urgency was abandoned and the second part dealing with the setting aside of the JSC’s impeachment decision as unconstitutional and invalid was postponed pending the finalisation of a time table for the filing of papers by the various parties, including the JSC and Freedom Under Law, which is applying to join the JSC’s opposition to Hlophe’s application.
The application for a judge outside of the Gauteng division was made in a letter sent on Monday by Hlophe’s attorney, Barnabas Xulu, to the respondents — who include the JSC, President Cyril Ramaphosa, justice minister Ronald Lamola and speaker of the National Assembly Nosiviwe Mapisa-Nqakula — on the grounds that the judge president of the Gauteng division, Dunstan Mlambo, was biased against Hlophe.
This, Xulu said, resulted “in the inability of any judges in his division being impartial enough to hear this matter”.
Mlambo was one of the members of the JSC who supported the impeachment of Hlophe for gross misconduct on the grounds that he attempted to influence two Constitutional Court judges — Bess Nkabinde and Chris Jafta — on a matter involving former president Jacob Zuma.
Sutherland was scathing about the application for a judge outside the Gauteng division to hear the matter, saying to Hlophe’s lawyer, advocate Thembalihle Sidaki: “Is that [request] seriously made? Do you think that all the members of the Gauteng division constitute a swarm of minions who are enthralled to the judge president and who go about sucking up to him on each and every thing that he has a whim about?
“I can put to you now that there seems to be no merit on any grounds for inviting a member of another division to come and hear this matter,” he said.
“It is the responsibility of this division to hear it. I will case manage this matter until the hearing, and a judge of this division will hear it and I hope that will be the last we hear about it. Of course, if you have any reason to seek the recusal of a judge to hear the matter, that is a different issue. That we will deal with in due course.”
Sidaki noted that there was a precedent for a judge outside a division presiding over a matter but conceded that the content of Xulu’s letter was “unfortunate”.
Hlophe has applied for the JSC decision on his impeachment to be set aside on the grounds that the JSC was not lawfully constituted when the decision was made on August 25 and that this rendered the decision a nullity. He has also argued that he was not guilty of gross misconduct and that this finding should be dismissed.
Sidaki agreed that the first part of the application dealing with urgency should be abandoned. This part also included an application for the stay of the parliamentary proceedings related to the impeachment — the National Assembly has to vote on the impeachment decision before it can be made final
— pending the outcome of the application to have the JSC decision set aside. It also involved an urgent application for a stay on a suspension of Hlophe from office by Ramaphosa.
The presidency has informed the court that it has not received an application from the JSC for Hlophe’s suspension and the JSC has indicated it will not submit one pending the outcome of the case. Mapisa-Nqakula has also informed the court that parliament is in recess until the beginning of November.
Therefore, the parliamentary process dealing with the JSC’s impeachment decision will not take place until the resumption of parliament. Parliament’s justice portfolio committee plans to review the JSC process in reaching its decision to ensure it was fair.