Hlophe to appeal misconduct ruling as judgment ‘was bad in law’

Western Cape Judge President John Hlophe is set to appeal a court ruling relating to his legal battle against the Judicial Service Commission (JSC).

The Johannesburg High Court on Thursday dismissed Hlophe’s review application which sought to have the JSC’s gross misconduct findings against him set aside.

While Hlophe wanted the matter to go back to the commission, the judge had asked the high court to order Parliament to conduct its own investigation into the allegations of misconduct rather than vote on his impeachment.

This was also dismissed by the high court.

New law

After studying the judgment, Hlophe’s lawyer Barnabas Xulu has indicated that the ruling will be appealed.

Speaking to 702, Xulu said the grounds for the appeal is that the initial decision was based on a new law and, therefore, the judgment “was bad in law”.

“After consultation with our client, we have received instructions to make a leave to appeal before the Gauteng High Court the entire judgment on the grounds that there’s a new law that this judgment come up with,” he said.

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

“[The judgment] does not reflect the established jurisprudence on constitutional and legal issues, which talks of the composition of the statutory body and that statutory body has not been properly constituted,” Xulu added.

The lawyer said given that this was a new law altogether it was important that “another court must agree with the judgment or disagree with it”.

Click below for the full North Gauteng High Court judgment dismissing Western Cape Judge President John Hlophe's application tackling the gross misconduct finding from the Judicial Service Commission that has him staring an impeachment process in the face. https://t.co/0zBZ4kvVcp

— Erin Bates (@ermbates) May 6, 2022

Gross misconduct

Hlophe’s impeachment stems from the JSC’s August 2021 findings.

At the time, the JSC found that Hlophe had improperly tried to cajole two Constitutional Court (ConCourt) justices to violate their oaths of office by ruling in favour of former president Jacob Zuma.

The matter related to the validity of searches during the arms deal investigation of Zuma and French arms company Thales’ local subsidiary, Thint, in 2008.

READ MORE: JSC’s findings against Hlophe cannot be probed again, Parliament told

The commission concluded that Hlophe was guilty of gross misconduct based on the Judicial Conduct Tribunal’s findings.

The JSC’s report was sent to the National Assembly which then referred the matter to the committee on justice.

The report was referred to the committee by National Assembly Speaker Nosiviwe Mapisa-Nqakula so they could consider the procedural aspects of the impeachment and report back to the House once done.

Impeachment process

Hlophe’s 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 Hlophe’s impeachment, which would result in the judge being formally removed from office by 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.

Should Hlophe be impeached, he will be the first judge since the advent of democracy to be removed from office.

NOW READ: Will Hlophe’s impeachment vote in Parliament be held via secret ballot?