‘No loopholes’: Parliament starts process to impeach judges Hlophe and Motata

Parliament is forging ahead with an impeachment vote for Western Cape Judge President John Hlophe and retired Gauteng Judge Nkola Motata.

The Portfolio Committee on Justice and Correctional Services on Wednesday adopted a framework it will follow to remove the two judges.

Motata and Hlophe’s removal from the bench was recommended by the Judicial Service Commission (JSC) after they were both found guilty of gross misconduct for separate matters.

Six-step process

Parliamentary legal adviser, Dr Barbara Loots said the committee would have to consider Section 177 of the Constitution when conducting the process.

“If one looks at 177 and the roles of the JSC and the National Assembly … neither are subordinate to the other. The roles are different, but equal,” she said.

Loots said the National Assembly may not reconsider the merits of the findings against Motata and Hlophe since that task lied with the JSC.

“So the finding obligation falls on the JSC and that is jurisdictional precondition to the National Assembly.”

She, however, said MPs would have to make a “political decision” on both matters.

Loots proposed a six-step process, which the committee agreed to adopt, to handle the procedural aspects of the impeachment.

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The first step was for the committee to formally note the gross misconduct findings, while the second step was to seek a “procedural” briefing from an official of the JSC.

“That person, however, would be bound by the process as the committee cannot enter into a discussions of the merits,” Loots explained.

She said the third step was to allow Motata and Hlophe the opportunity to make representations to the National Assembly on “extenuating circumstances” though this would not change the guilty finding, but could affect the final decision on whether to impeach the judges or not.

“To contextualise this, when somebody has a criminal finding against them, during the sentencing, a person can bring other issues to the court for consideration for [a lesser sentence],” Loots told the committee.

Watch the meeting below:

The fourth step, Loots explained, would be for the committee to deliberate on whether it wanted to recommend (the political decision) the judges’ removal to the National Assembly for a vote.

“The fifth step is that the committee must report on its political decision and then as a final step the National Assembly must consider the recommendation and vote,” Loots added.

Loots stressed that the committee needed to make a decision which is “procedurally rational and lawful”.

“It should be a considered decision … there should be deliberations and as long as we can show that members of the committee and the National Assembly applied their minds and then voted in terms of the democratic principles set out for this political realm, then I think Parliament will be performing its duties,” she said.

‘No loopholes’

The committee’s chairperson, Bulelani Magwanishe said Parliament will decide on the date for the start of the impeachment of Hlophe and Motata, but it will happen in the next few months.

“We know there was a referral on Judge Hlophe and Judge Motata, We have done step one for Motata, which is to formally note the findings as legal fact. I think we need to do the same for Hlophe and then we will write to the JSC for both Motata and Hlophe.

“It will appear on the programme as to when we are expecting a briefing on Motata and Hlophe. Everything else will then follow likewise. We will be processing these two requests this term,” Magwanishe told the committee.

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

He said it would be the first time since 1910 that a judge was impeached in South Africa.

“We need to have a framework to ensure we know the steps to follow in order for us to arrive at a recommendation to the House. This is a new process for Parliament and we want to ensure we leave no loopholes,” Magwanishe said.

“This framework that we adopted today is important as it will be the impeachment procedure for any judge that comes before the committee now and in the future.”

The chairperson said the committee would proceed to step two.

“We will have to satisfy ourselves that the JSC has followed all the procedures before we present a recommendation to the House.”

JSC findings

Motata had 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: John Hlophe misconduct saga several years from reaching a conclusion

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.