Molefe Seeletsa
Digital Journalist
3 minute read
5 May 2022
11:51 am

Parliament await ruling on Hlophe’s case, can’t proceed with impeachment

Molefe Seeletsa

Should Hlophe be impeached, he will be the first judge since the advent of democracy to be removed from office.

Western Cape Judge President John Hlophe. Picture: Tracy Lee Stark

Parliament is still awaiting a court judgment to see whether it will proceed with the impeachment against Western Cape Judge President John Hlophe.

Hlophe’s impeachment vote has currently been put on ice amid his legal battle with the Judicial Service Commission (JSC).

His review application, which seeks to have the JSC’s gross misconduct findings against him set aside and that the matter goes back to the commission, was heard at Johannesburg High Court in February this year.

ALSO READ: Hlophe could escape impeachment, despite JSC’s gross misconduct finding

The judgment was reserved after arguments were heard from the parties – including Freedom Under Law (FUL) – involved.

With the high court still yet to deliver its judgment, this means the Portfolio Committee on Justice and Correctional Services cannot proceed with Hlophe’s impeachment process.

This was revealed during the National Assembly’s Programming Committee meeting on Thursday.

The committee on justice had referred the matter last Tuesday.

Gross misconduct

Hlophe’s impeachment stems from the JSC’s August 2021 findings.

At the time, the JSC found that Hlophe had improperly tried to cajole two Constitutional Court (ConCourt) justices to violate their oaths of office by ruling in favour of former president Jacob Zuma.

The matter related to the validity of searches during the arms deal investigation of Zuma and French arms company Thales’ local subsidiary, Thint, in 2008.

READ MORE: JSC’s findings against Hlophe cannot be probed again, Parliament told

The commission concluded that Hlophe was guilty of gross misconduct based on the Judicial Conduct Tribunal’s findings.

The JSC’s report was sent to the National Assembly which then referred the matter to the committee on justice.

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.

Court battle

In his legal challenge, Hlophe has argued that the JSC did not follow the law correctly when it endorsed the Tribunal’s findings.

The judge wants the high court to rule that the JSC meeting – in which the majority voted that he should be impeached – be declared unlawful as the commission “failed to perform its constitutional obligations”.

His lawyer Thabani Masuku, during February’s court proceedings, argued this on the basis that some of the judges within JSC, including Judge Boissie Mbha of the Supreme Court of Appeal (SCA), did not have the proper standing to be part of the decision-making process.

ALSO READ: Hlophe abandons application to stop Ramaphosa from suspending him

Meanwhile, Hlophe also wants the high court to order Parliament to convene a hearing on the impeachment.

However, Mapisa-Nqakula’s legal team have argued that the National Assembly cannot hold the inquiry at all.

Advocate, Steven Budlender told the high court that Parliament could only hold the vote on whether Hlophe should be removed or not.

Impeachment process

Hlophe’s impeachment process has to be in line with section 177 of the Constitution, which governs the removal of a judge.

In the National Assembly, two-thirds of MPs must vote in favour of Hlophe’s impeachment, which would result in the judge being formally removed from office by Ramaphosa.

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.

NOW READ: Will Hlophe’s impeachment vote in Parliament be held via secret ballot?