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

The Judicial Services Commission (JSC) has described what it’s found were Western Cape Judge President John Hlophe’s attempts to influence two constitutional court justices back in 2008 as “a serious interference with the constitutionally protected independence of the judiciary”.

The JSC on Wednesday announced it had taken a decision to uphold the Judicial Conduct Tribunal’s (JCT’s) April findings of gross misconduct against Hlophe. The penultimate step in the impeachment process, this now leaves Hlophe’s fate to be finally determined by a Parliamentary vote.

In its majority’s reasons, which were made available on Thursday, the commission emphasised  judicial independence was fundamental to public confidence in the administration of justice.

“Without public confidence, the legal system can not command the respect and acceptance that are essential to its effective operation,” it said.

And the commission said core to the principle of judicial independence was “no outsider – be it government, a pressure group, individual or even another judge – should interfere or attempt to interfere with the way in which a judge conducts his or her case and makes his decision,”

“Viewed objectively, the conduct was an attempt to defeat or obstruct the administration of justice. That constitutes a serious interference with the constitutionally protected independence of the judiciary”.

The case against Hlophe relates to what the commission found was indeed an attempt to “influence, improperly,” Justices Chris Jafta and Bess Nkabinde during a make-or-break appeal involving former president Jacob Zuma’s prosecution over the arms deal. 

In terms of the Constitution, gross misconduct is one of three categories of complaints which, if established, can get a judge kicked off the bench. But it’s a complex and lengthy process and  a two-thirds majority vote in Parliament is still required to seal the deal and impeach Hlophe.

This the closest any judge has ever come to impeachment in South Africa.

In 2019, the JCT found convicted drunk driver retired Judge Nkola Motata guilty of gross misconduct but the JSC ended up overruling it. Freedom Under Law (FUL), however, has since launched a court bid to have that decision overturned.

The JSC initially dismissed the complaint against Hlophe too. It was only after that decision was overturned by the courts in 2011 – also in response to an application brought by FUL – a hearing was eventually reconvened late last year.

Advocate Paul Hoffman SC – a legal expert and the director of anti-corruption lobby group Accountability Now – says it is “appalling” it had been pending for so long.

And he isn’t holding his breath on Hlophe getting the boot in the end.

“He’s not getting impeached,” he says.

Hoffman suspects before it could go to a vote, Hlophe would try and get the JSC’s decision overturned in the courts. This could see the protracted saga drag on for several years still to come.

Even if it were to land up in a vote, though, Hoffman believes Hlophe had enough parliamentary support to hang on to his judgeship.

The fact that Hlophe is still on the bench has also been a bone of contention for many.

The JSC this week invited the parties “to show cause why it should or should not advise the President” to suspend Hlophe pending the finalisation of the matter. And this has prompted renewed calls to oust him.

FUL’s executive director, Nicole Fritz, noted Western Cape High Court Judge Mushtak Parker had been recommended for suspension even before the tribunal had made a decision on his case.

“It’s very hard to understand why a decision hasn’t been taken in respect of Hlophe given that he wields so much power and authority and therefore his potential to taint proceedings is that much higher,” she said.

But she said the decision taken this week was an “enormously significant milestone”.

“Whilst it isn’t the end, we are that much closer to – I think – finally shutting the door on what has been a very destructive chapter for the administration of justice and for the public’s ability to have confidence in the administration of justice”.