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Decision to impeach Judge President John Hlophe makes no sense, says legal expert

Embattled Western Cape Judge President John Hlophe. Picture: Phando Jikelo/African News Agency (ANA) Archives

Embattled Western Cape Judge President John Hlophe. Picture: Phando Jikelo/African News Agency (ANA) Archives

Published Aug 27, 2021

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Cape Town - Law expert Nthabiseng Dubazana says after 13 years the decision to impeach Western Cape Judge President John Hlophe “makes no sense”.

The Judicial Service Commission (JSC) on Wednesday voted that the judge president should be removed from office due to gross misconduct. This comes after the Judicial Conduct Tribunal in April found Hlophe guilty of trying to influence the outcomes of former president Jacob Zuma’s corruption charges in 2008.

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In a statement, the JSC said the matter will be referred to the National Assembly for its decision.

Judge Hlophe risks becoming the first judge to be removed from office since 1994.

After reading through the transcripts of the JSC, Dubazana further questioned what the impeachment is based on, as she says some of the cross-examination done during the hearing shows that the judges were not influenced by Judge Hlophe; instead they are saying there was a conversation that was had.

“They are dealing with someone who is going to take this on review. I don’t see this as the end right now,” Dubazana said.

In line with the principles of natural justice, the JSC has invited the parties to show cause why it should or should not advise President Cyril Ramaphosa to suspend Judge Hlophe pending the finalisation of the matter by the National Assembly (NA).

Dubazana added that it would be best for Ramaphosa to suspend Judge Hlophe once the matter is finalised.

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“It wouldn’t be out of the norm for the president to suspend Hlophe, but why suspend someone pending finalisation of a matter? If he gets suspended before the time, and the outcome is the complete opposite, it becomes another legal battle.”

While the fate of Judge Hlophe lies in the hands of the NA, law expert advocate Paul Hoffman suggests that the impeachment process will not be successful.

Hoffman said he is satisfied that the majority finding is correct, but he is also sure that Judge Hlophe will take the majority findings on review in a high court.

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He explained that if the review fails, Judge Hlophe will take it on appeal in the Supreme Court of Appeal and if he fails there, he will seek to argue that the Constitutional Court should hear a further appeal, because it will then be populated by different justices to the justices who laid the complaint against him.

“Assuming these processes fail, it will bring the date for the vote in Parliament very close to the date of his retirement, which I understand to be in May 2024. It’s possible that the legal process will be spun out until his retirement date.”

If the matter gets to Parliament, Hoffman said this will count in Judge Hlophe’s favour as many ANC members regard him as a comrade and fellow cadre.

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“They regard him as a saviour of their own careers because he presided over the plea bargain of all of them. There are ’IOUs’ floating around Parliament which may be sufficient if a free vote is out to prevent the necessary majority from being attained, or if a free vote isn’t allowed, the ANC majority will vote against the impeachment which will be a dark day for the rule of law.”

The DA’s Glynnis Breytenbach welcomes the decision by the JSC to uphold the recommendation that Judge Hlophe face an impeachment vote. She said the JSC’s decision is a victory for the rule of law and the importance of judicial independence.

“Judge President Hlophe has allowed his impartiality – essential to a judge – to be impacted, and his conduct is proof that he is unfit for this position. He has completely decimated the reputation of the Western Cape High Court as an independent entity.

“Although it has taken nearly 13 years to get to the point where Hlophe is being held accountable, the DA fully supports his impeachment and will vote in favour of his removal in the National Assembly. We sincerely hope that all other parties will vote to achieve the two-thirds majority needed in terms of Section 177(1)(b) of the Constitution to remove Hlophe. In doing so, it will demonstrate that Parliament is serious about their work to protect the judiciary,” said Breytenbach.

The JSC has given Judge Hlophe and the Constitutional Court until September 3 to make submissions.

Hlophe's legal representative, Barnabus Xulu, was unavailable to comment at the time of publication.

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