Cape Town - In a move described as having tarnished the independence of the judiciary, the portfolio committee on justice and correctional services has resolved to recommend to the National Assembly that former Western Cape Judge President John Hlophe and Judge Nkola Motata be removed from office.
A two-thirds majority in the National Assembly is required for a resolution to remove a judge.
The recommendation yesterday followed findings by the Judicial Service Commission (JSC), which held that each judge had committed gross misconduct for varying charges.
Judge Hlophe’s attorney, Barnabas Xulu, said the decision by the portfolio committee exposed blatant interference in judicial matters by Parliament.
“This is the start of the fight. We have a situation where, for the first time, the South African public is going to know how politicians interfere in judicial matters.
“This involves judicial officers.
“When politicians are involved, in one way or another, the matter disappears. This is a threat to judicial independence.
“We have to fight. Many people’s rights depend on it. This decision by politicians interferes with a pending court case.
“No justice has been taken into account by the justice committee. The independence of the judiciary has been tarnished by the move,” Xulu said.
He said he would meet with Judge Hlophe on Saturday to discuss their next steps.
Committee chairperson Bulelani Magwanishe said the committee processes relating to both judges were undertaken in terms of Section 177 of the Constitution, after the JSC’s findings of gross misconduct were referred to the National Assembly for further consideration and possible removal.
The JSC’s finding of gross misconduct against Judge Hlophe relates to a complaint of attempted improper influence brought by the Justices of the Constitutional Court, relating to allegations that he tried to influence the outcome of former president Jacob Zuma’s corruption charges in 2008.
Judge Hlophe argued that there was alleged undue political pressure to remove him from office, and claimed it was in the public interest for the committee to not proceed with its deliberations as to his possible removal.
The JSC’s findings related to two complaints against Judge Motata lodged 16 years ago. One concerned his defence in his criminal trial and the other was a charge of racism.
In the first matter, Judge Motata was alleged to have instructed his lawyer to inform the court that he was not drunk at the scene of a motor accident.
A JSC tribunal thereafter concluded that Judge Motata had conducted a defence that he knew lacked integrity.
On the complaint of racism, the tribunal held that the judge’s conduct and remarks at the scene of the car accident were racist.
Judge Motata indicated to the committee that he was found guilty of misconduct only by the JSC and was consequently fined R1 152 650.40, which he had already paid.
He argued that there was no JSC decision of gross misconduct properly referred to the committee.
The committee previously heard from Dr Barbara Loots of Parliament’s constitutional and legal services regarding the process followed so far and its role in it. The committee heard that its role was limited and did not include conducting an enquiry or repeating the work of the JSC.
Parliament’s responsibility was to deliberate on the consequences of the JSC findings and indicate whether removal should follow, the committee noted.
“We are convinced all processes were fair,” said Magwanishe.
“The majority of members in the committee were in favour of this and we therefore cannot but recommend to the House that both judges be removed from office.”