‘Where is the ubuntu?’ asks Mkhwebane as Hlophe, Motata’s removal recommended to National Assembly

Parliament has decided to recommend the removal of both Western Cape Judge President John Hlophe and retired Gauteng Judge Nkola Motata.

The Portfolio Committee on Justice and Correctional Services met on Wednesday to decide the fate of the two judges, both of whom were found guilty of gross misconduct by the Judicial Service Commission (JSC).

‘Heartless process’

During the deliberations, the committee’s chairperson Bulelani Magwanishe revealed that it wrote to the JSC for clarity after Motata raised concern about issues of jurisdiction and double jeopardy.

Motata argued that the JSC didn’t refer his matter to National Speaker Nosiviwe Noluthando Mapisa-Nqakula instead the commission went straight to court and this meant Parliament didn’t have jurisdiction to deal with his removal.

The retired judge also told the committee that he paid a R1.1 million fine so his removal would be double jeopardy.

Magwanishe said the JSC wrote to Parliament informing Mapisa-Nqakula that the commission will interact with Motata regarding the fine.

African National Congress (ANC) MPs Qubudile Dyantyi and Xola Nqola agreed that Motata should be impeached based on the JSC’s response to the committee.

Democratic Alliance (DA) MP Glynnis Breytenbach shared the same sentiment.

“Honourable Dyantyi summed it up eloquently. We agree,” she said.

Economic Freedom Fighters (EFF) MP Busisiwe Mkhwebane, however, said the committee was taking the wrong approach and Motata has shown remorse by paying the fine.

“He is a retired judge. Where is the ubuntu? To deal with Africans like this, I don’t think it is the proper way of dealing with this thing. Yes, that matter was dealt with and was finalised, but why do we have to treat this matter as if we are not dealing with the livelihood of a person. As the EFF we are not in support of the referral of this matter to the National Assembly because it’s just a very heartless process,” the former public protector said.

While DA MP Werner Horn agreed with Motata’s impeachment, he responded to Mkhwebane’s comments saying it was not fair to suggest the committee has not handled it procedurally or hasn’t applied its mind.

“We very specifically wrestled with what would be the proper process to deal with this matter. We have at every step of the way also asked for parliamentary legal services to advise us,” Horn said.

Watch the meeting below:

Horn said Mkhwebane’s insinuation that an African judge must be treated differently cannot be accepted as it flies in the face of MPs’ sworn allegiance to the Constitution, which included non-racialism.

ANC MP Nomathemba Maseko-Jele said the principle of ubuntu cannot be used just loosely because the committee looked at the facts and circumstances. “Now, we cannot be made to feel guilty, by the statement of Honourable Mkhwebane.” 

“Yes, we feel for the family of Judge Motata and everyone around his life because this is a very difficult decision for one to come to,” Maseko-Jele said.

African Christian Democratic Party (ACDP) MP Steve Swart indicated that his party also supports Motata’s removal.

Swart said he believed the committee followed due process and applied its mind.

Magwanishe said by majority view, the committee will, therefore, recommend to the National Assembly Motata’s removal.

Hlophe removal

Meanwhile, it was heard that Hlophe wrote another letter to the committee, arguing that his matter is “not ripe for a decision” because he was appealing the JSC’s findings.

Parliamentary legal advisor Dr Barbara Loots provided a legal opinion to the committee about Hlophe’s letter.

Loots told MPs that Parliament’s legal services consulted with senior counsel, who informed the department that Parliament was obligated to proceed with the removal process against Hlophe as there was no court interdict.

“There is a legitimate decision for the committee to consider here. It’s been properly processed,” she said.

The legal advisor said the committee wasn’t conducting an inquiry after Hlophe requested to make oral representations.

She pointed out that the judge was given an opportunity to make substantial written submissions on two occasions.

Loots also highlighted that it was also not for the committee to get involved in Hlophe’s ongoing battle for state funding of his litigations to challenge his suspension and the gross misconduct findings made against him.

Dyantyi said he agreed with there was no legal impediment for the committee to proceed.

“He is asking us as Parliament to consider the findings and almost short of saying let’s do our own inquiry,” he said, adding that Section 177 of the Constitution didn’t allow Parliament to do a separate inquiry.

“The inquiry is done and concluded by the JSC,” Dyantyi continued.

RELATED: John Hlophe misconduct saga several years from reaching a conclusion

He, therefore, proposed Hlophe’s removal.

“Nothing changes to persuade, to convince us in recommending a political decision that we should be doing something different from the finding of a gross misconduct,” the ANC MP added.

Horn agreed with Dyantyi’s comments.

The DA MP said Hlophe’s argument that it was in the public interest not to finalise the matter was “unsubstantiated”.

“Black’s Law Dictionary says that something is only in the public interest if the general welfare of the public warrants recognition or protection or in our case a specific,” he said.

Horn argued that it would be “in the public interest” for Hlophe to be removed since the judge’s matter has been dragging for years.

Nqola also supported Hlophe’s impeachment.

But Mkhwebane defended Hlophe, saying the process was unfair as the judge had been granted an appeal by the courts despite the committee being informed that the appeal had lapsed.

“The issue of the gross misconduct finding is still not yet finalised. The merits of the issue were not settled because he was granted an appeal,” she said.

The EFF MP asked the committee to give Hlophe’s matter an opportunity to be completely ventilated in court and to request to the Department of Justice to avail funds to the judge.

She added Hlophe was “the chief justice we never had the opportunity to have as a country based on his expertise and experience”.

The committee has since decided to also recommend Hlophe’s removal.

JSC findings

Motata had previously been cleared of gross misconduct by the JSC despite a finding that he had committed gross misconduct by the Judicial Conduct Tribunal.

The Supreme Court of Appeal (SCA), however, set aside the JSC’s decision in June, paving the way for his impeachment by Parliament.

The judge’s guilty finding related to a January 2007 incident, where Motata crashed his car into the wall of a Hurlingham home and then made racist utterances to the homeowner, Richard Baird. 

READ MORE: Judges, including Maumela, to still face the music over alleged misconduct

In 2009, the Gauteng High Court in Johannesburg then convicted Motata of driving under the influence of alcohol and sentenced him to a fine of R20 000 or 12 months’ imprisonment.

Meanwhile, the recommendation for Hlophe’s removal came after the JSC found the judge had acted improperly when he attempted to sway two Constitutional Court (ConCourt) justices in favour of former president Jacob Zuma in his 2008 bid to overturn warrants used to seize 93 000 pages of corruption trial evidence against him.

The decision of the JSC upheld the Judicial Conduct Tribunal’s findings.

Hlophe’s impeachment was then referred to the committee in 2021 and later suspended by President Cyril Ramaphosa in December 2022.