The Judicial Conduct Tribunal found that Western Cape Judge President John Hlophe had breached sections of the Constitution, when he attempted to influence two justices of the Constitutional Court. Picture: African News Agency/ANA
The Judicial Conduct Tribunal found that Western Cape Judge President John Hlophe had breached sections of the Constitution, when he attempted to influence two justices of the Constitutional Court. Picture: African News Agency/ANA

Will Judge President John Hlophe face impeachment after being found guilty of gross misconduct?

By Zintle Mahlati Time of article published Apr 11, 2021

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The question of whether Western Cape Judge President John Hlophe will face impeachment proceedings remains in the balance, as the Judicial Service Commission (JSC) will now deliberate the report of the Judicial Conduct Tribunal (JCT).

The tribunal’s report was released on Saturday night and made findings against Judge Hlophe. The JCT forms part of the JSC and makes recommendations on complaints about judicial conduct.

The report stated that Judge Hlophe had breached sections of the Constitution, when he attempted to influence two justices of the Constitutional Court.

The ruling relates to a complaint filed by 11 justices of the apex court in 2008. They claimed that Judge Hlophe had attempted to influence Justice Chris Jafta and Justice Bess Nkabinde to rule in a particular manner, in a pending case between the National Prosecuting Authority and former president Jacob Zuma.

Judge Hlophe had visited Judge Jafta in April 2008 and Judge Nkabinde in March 2008. Judge Hlophe denied that his visits to the two justices had been an attempt to influence the outcome of the pending matter. He said it was simply part of legal discussions.

The tribunal matter has been delayed for years due to legal matters related to the original complaint laid by the justices. Judge Hlophe had also laid counter complaints against justices of the Constitutional Court in the process.

The tribunal found that Judge Hlophe had breached the provisions of Section 165 of the Constitution, in attempting to influence justices of the court to violate their oaths of office.

“His conduct seriously threatened and interfered with the independence and impartiality, dignity and effectiveness of the Constitutional Court. His conduct threatened public confidence in the judicial system,” the tribunal said.

Judge Hlophe was guilty of gross misconduct as envisaged in Section 177 of the Constitution, the tribunal said.

The tribunal’s report has been submitted to the chairperson of the JSC, Chief Justice Mogoeng Mogoeng. The JSC will now deliberate over the findings and decide on Judge Hlophe’s future.

Retired Constitutional Court Justice Johann Kriegler, from Freedom Under Law (FUL) , said the JSC could accept, qualify or reject the report from the tribunal.

If the JSC accepts the finding that Judge Hlophe was guilty of gross misconduct, the commission would have no choice but to report the matter to Parliament.

It is only then that Judge Hlophe could face a possible threat, through impeachment proceedings, to his powerful role as the head of the judiciary in the Western Cape.

“If it (JSC) accepts it, then it will report the matter to the Speaker’s office in Parliament, and then Parliament will determine the matter – probably along the same lines as the public protector. And if a two-thirds majority finds that the tribunal did its job properly and that Judge Hlophe is guilty of gross misconduct, they will tell the President to dismiss him. The President would have no choice,” Kriegler said.

The process to further look into the report’s findings could take time and, due to this, FUL has recommended that the JSC ask President Cyril Ramaphosa to suspend Judge Hlophe while further disciplinary processes take place.

The JSC had, in 2019, decided not to find Judge Nkola Motata guilty of gross misconduct despite a ruling by the tribunal. Instead, he was issued with a R1 million fine. Judge Motata had driven his car into a fence, while driving drunk, in 2007.

Although the JSC has yet to deliberate on the matter of whether Hlophe should face impeachment, the DA has called on Parliament to deliberate on the matter of impeachment.

DA MP Glynnis Breytenbatch said: “The DA again calls on President Cyril Ramaphosa to appoint a retired judge to investigate all allegations of undue influence and possible bribery of members of the judiciary, as part of the so-called ’Project Justice’, said to have been part of the nefarious activities of the State Security Agency.”

Attempts to obtain comment from Judge Hlophe’s lawyer were unsuccessful.

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