Parliament has been informed that it is unable to conduct another investigation into Western Cape Judge President John Hlophe’s charges as it is only limited to a check-and-balance function.
National Assembly’s portfolio committee on justice and correctional services on Thursday was briefed by Parliament’s legal advisers Barbara Loots and Siviwe Njikela, in which they gave a legal opinion on Hlophe’s impeachment process.
The process has to be in line with section 177 of the Constitution, which governs the removal of a judge.
This is after the committee was tasked with processing the Judicial Service Commission’s (JSC’s) report into Hlophe.
The report was referred to the committee by National Assembly Speaker Nosiviwe Mapisa-Nqakula so they could consider the procedural aspects of the impeachment and report back to the House once done.
During the late-evening briefing, Loots advised the committee against holding an inquiry into Hlophe’s conduct as the JSC had already made its findings, which were then tabled to Parliament.
She explained that the committee was “an extension of the House doing background work that feeds back into the National Assembly”.
“So what’s different here from what members might recall from section 89 and section 194 of the Constitution is that the inquiry process has already been done. It’s not for Parliament to look at what the grounds were. The [JSC] has done that. The role of Parliament here, unlike in section 89 and section 194 , is that it performs a check-and-balance function.
“With the different arms of government it’s always a check-and-balance legislator to the judiciary [then] from the judiciary to the executive and legislator to the executive, to make sure that even though we have a separation of powers that there is a balance in the exercise of responsibilities the Constitution places on a certain arm of government.
“So the National Assembly’s role here is therefore such a check. It’s keeping that balance in these sequential roles as set out in section 177 of the Constitution. It’s the JSC, the National Assembly and then the president,” she said.
Loots emphasised that Parliament’s role was limited to considering and reporting on whether the JSC’s procedure was fair so that a vote on the matter “can be informed that it was a rational decision”.
“Every decision, every vote the National Assembly takes should be rational. Therefore what the committee can now do in doing the background as an extension of the House seeing there are no special rules are necessary as this is not the type of situation in which Parliament would be doing an inquiry. It’s merely a normal oversight role where there is a check function for the National Assembly to do.
“The committee in the background can determine its own process and might look at how it considers removal of magistrates, and whether it feels all the boxes were ticked, that the procedure that was followed at the JSC was fair and report back to the National Assembly on whether it felt everything was in order,” she added.
The JSC last month confirmed its decision to uphold the Judicial Conduct Tribunal’s findings of gross misconduct against Hlophe.
In April, the tribunal unanimously found Hlophe guilty of gross misconduct and improperly attempting to influence two Constitutional Court (ConCourt) justices to rule in favour of former president Jacob Zuma and French arms company, Thales, in a case relating to the validity of search and seizure operations in the arms deal investigation.
In the National Assembly, two-thirds of MPs must vote in favour of impeachment, which would result in a judge being formally removed from office by the president.
If the House does not vote in favour of impeachment, the judge could be sanctioned through punitive measures that include an order for an apology, a reprimand, counselling or training.
Should Hlophe be impeached, he will be the first judge since the advent of democracy to be removed from office.