Molefe Seeletsa

By Molefe Seeletsa

Digital Journalist

‘No further delay’: Judges Hlophe, Motata fate to be debated in Parliament next month

The judges have been given until 15 November to make representations to Parliament.

Parliament is set to meet next month to discuss whether it will recommend the impeachment of Western Cape Judge President John Hlophe and retired Gauteng Judge Nkola Motata.

The Portfolio Committee on Justice and Correctional Services on Tuesday decided to forge ahead with the impeachment processes against the two judges without initiating an inquiry.

Motata and Hlophe’s removal from the bench was recommended by the Judicial Service Commission (JSC) after they were both found guilty of gross misconduct for separate matters.

No further delays

During the meeting, Parliamentary legal adviser, Dr Barbara Loots informed the committee that there was no legal impediment hindering MPs from proceeding with both cases.

She reminded the committee that it was not for Parliament to run an inquiry into the JSC’s processes.

“That process does not impact on what the committee is doing because there is no interdict. The committee is not concerned with that process, it is concerned with a JSC finding and absent a party going to court interdicting this committee, the committee is under a constitutional obligation to act in terms of Section 177,” Loots said.

African National Congress (ANC) MP Qubudile Dyantyi expressed concern about the delays in the matter.

“We won’t have the luxury of time for any further delay after so many years. We are going to have to be very precise in terms of the work we must do,” Dyantyi said.

Democratic Alliance (DA) MP Glynnis Breytenbach shared the same sentiments.

“I understand that parliament has not delayed unduly. But we need to get this done. Both of these judges have had plenty of time to set out extenuating circumstances ad nauseam,” she said.

ALSO READ: ‘No loopholes’: Parliament starts process to impeach judges Hlophe and Motata

Breytenbach also raised questions about the public’s role in the matter.

“Chair, there is nothing in Section 177 that suggests that this procedure should be opened to further public. We all here, all the members, we represent the public, that’s our job. And our job now going forward is to consider, politically speaking, whether Judge President Hlophe should be impeached or not. And we can’t abdicate this responsibility to opening it up for public participation,” the DA MP said.

The committee’s chairperson Bulelani Magwanishe said MPs have, therefore, decided not to invite public comment on whether Hlophe and Motata should be impeached.

“The committee also resolved that its public involvement process will be limited to making its meetings open to the media and the public in order for the public to follow the process and to ensure transparency. This is due to the limited role that the committee itself has in terms of Section 177 of the Constitution,” Magwanishe said in a statement.

Hlophe and Motata will be given until 15 November to make written submissions on “extenuating circumstances” the judges would like the committee to consider before a decision is made.

The committee will then deliberate on these matters on 22 November.

JSC findings

Motata had been cleared of gross misconduct by the JSC despite a finding that he had committed gross misconduct by the Judicial Conduct Tribunal.

The Supreme Court of Appeal (SCA), however, set aside the JSC’s decision in June, paving the way for his impeachment by Parliament.

The judge’s guilty finding related to a January 2007 incident, where Motata crashed his car into the wall of a Hurlingham home and then made racist utterances to the homeowner, Richard Baird. 

READ MORE: John Hlophe misconduct saga several years from reaching a conclusion

In 2009, the Gauteng High Court in Johannesburg then convicted Motata of driving under the influence of alcohol and sentenced him to a fine of R20 000 or 12 months’ imprisonment.

Meanwhile, the recommendation for Hlophe’s removal came after the JSC found the judge had acted improperly when he attempted to sway two Constitutional Court (ConCourt) justices in favour of former president Jacob Zuma in his 2008 bid to overturn warrants used to seize 93 000 pages of corruption trial evidence against him.

The decision of the JSC upheld the Judicial Conduct Tribunal’s findings.

Hlophe’s impeachment was then referred to the committee in 2021 and later suspended by President Cyril Ramaphosa in December 2022.

Impeachment process

The 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 a judge’s impeachment, which would result in the judge being formally removed from office by President Cyril 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.

This would be the first time since 1910 that a judge would be impeached in South Africa.

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