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

Impeachment proceedings against Western Cape Judge President John Hlophe will continue after Parliament’s constituency period came to an end.

Impeachment

Giving an update on the progress of the impeachment during a programming committee meeting on Tuesday, National Assembly secretary Masibulele Xaso suggested that a secret ballot may be held for the proceedings.

This comes after the National Assembly’s legal services unit provided an opinion on whether Speaker Nosiviwe Mapisa-Nqakula has the discretion to allow a secret ballot in respect of the removal of a judge.

“One of the issues raised by Mr Xaso is that the speaker may want to use her discretion to decide on the voting method.

“So as things stand now, I will provide an opportunity for the legal team to take me through on this matter so as I apply my mind to it I’m actually well briefed about the context,” Mapisa-Nqakula told MPs.

ALSO READ: Hlophe abandons application to stop Ramaphosa from suspending him

The speaker further said: “I will then come to the programming committee to give an indicated of how soon we may want [the impeachment to take place].”

Xaso, meanwhile, also indicated that the National Assembly, at this stage, preferred to carry out the impeachment process, when voting, physically in the House rather than via a virtual platform.

“No, we are not there yet in terms of providing a secret ballot facility. ICT [information and communications technology] and ourselves are working on the matter.

“What [option] we have currently is like what we did did when we elected the Speaker being here physically to exercise that right [to vote],” he said.

Court action

The Judicial Service Commission (JSC) in August 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.

In a majority judgment, the JSC 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 was then referred the matter to the portfolio committee on justice and correctional services.

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

The committee was tasked with reviewing and considering the procedural aspects of the impeachment.

Hlophe had approached the Johannesburg High Court with an urgent application – divided into part A and part B – seeking to interdict the impeachment process as well as stopping President Cyril Ramaphosa from suspending him.

However, part A of Hlophe’s application was abandoned due to Parliament’s constituency period and the JSC postponing its meeting because of the litigation.

In part B, the judge wants to have the high court set aside the tribunal’s findings.

He also wants the high court to rule that the JSC meeting – in which the majority voted that he should be impeached – be declared unlawful as the commission “failed to perform its constitutional obligations”.

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.

The judge has since been nominated for the chief justice position after the incumbent Mogoeng Mogoeng’s term came to an end last month.