Hlophe still faces suspension or impeachment
● The Judicial Service Commission (JSC) is considering its next step after the high court dismissed judge president John Hlophe’s challenge to the gross misconduct findings against him. So is parliament.
Will the JSC be recommending suspension? Will parliament press ahead with an impeachment process? Asked by the Sunday Times, both said they had yet to decide. But as things stand, the ball is in their court and their decisions aren’t affected by Hlophe’s announcement that he would appeal the judgment.
The misconduct finding relates to a 2008 complaint by all the then justices of the Constitutional Court that Hlophe had sought improperly to influence the outcome of cases related to corruption charges against former president Jacob Zuma. In August last year, the JSC found him guilty of gross misconduct.
Hlophe then went to court to challenge the decision. Last week, he lost.
The Western Cape judge president had initially brought his application in two parts. Part A was an interim interdict — brought urgently — to “stay” any steps by parliament and prevent his suspension until his main case. Part B, challenging a number of different aspects of the JSC’s decision, was finally determined.
If Hlophe had won his part A interdict, an appeal would have meant the interdict remained in place. No suspension or impeachment moves would have been possible until the case had worked its way through the appeal system.
But Hlophe abandoned part A. The legal effect of that, coupled with last week’s court order, means the situation is as it was immediately after the JSC made its decision.
During the hearing for part A, the JSC said that it had decided, by majority, to postpone a meeting to decide on whether to recommend to the president that Hlophe be suspended until the high court had made its decision. Its former secretary, Sello Chiloane, said this “must not be understood to include appeals, however,” adding that the JSC reserved its right to “take appropriate action” once a judgment had been delivered by the high court.
Parliament said in its part A affidavit that there was no need for Hlophe to urgently approach court because, at that point, “only very limited steps” had been taken by parliament in the impeachment process. The latest was a September 9 briefing by the parliamentary legal advisers to the justice portfolio committee, which was dealing with Hlophe’s possible impeachment.
Parliament was unlikely to take any further steps until November 2021, it said. However, no undertaking was given in that affidavit to wait for the outcome of appeals; and it is now past November 2021. Parliament will need to decide and probably take legal advice on whether it should press ahead or await the outcome of Hlophe’s intended appeal. Here, parliament may consider that the constitution gives it the power to control its own internal processes, but also requires that all constitutional obligations “be performed diligently and without delay”.
Parliament’s spokesperson Moloto Mathopo said: “Parliament has noted the developments, is in process of assessing the legalities regarding the matter, and will make a determination in due course how to proceed, and the committee will be advised accordingly.”
The JSC may also have to decide on suspension.
President Cyril Ramaphosa may suspend only “on the advice of” the JSC. Considering that its earlier decision to postpone a decision was taken by majority, it may be a contested one. Spokesperson Sesi Baloyi SC said the JSC was “considering” matters.
Hlophe is yet to file appeal papers. Asked immediately after his announcement that he would appeal, about litigating on what may happen in the interim, his attorney, Barnabas Xulu, said: “We are not going to pre-empt what is going to happen ... we have been instructed to file for leave to appeal.”