Judge President Hlophe seeks to have the court declare that the JSC was not properly constituted when it made its findings against him. Picture: Ayanda Ndamane/African News Agency(ANA)
Judge President Hlophe seeks to have the court declare that the JSC was not properly constituted when it made its findings against him. Picture: Ayanda Ndamane/African News Agency(ANA)

John Hlophe approaches Gauteng court to stay recommended impeachment, suspension

By Mwangi Githahu Time of article published Sep 17, 2021

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Cape Town - Embattled Western Cape High Court Judge President John Hlophe has given the Judicial Services Commission (JSC), President Cyril Ramaphosa, the Justice and Correctional Service Minister and the Speaker of Parliament until Wednesday next week to react to his urgent review application to set aside his impeachment.

Judge Hlophe, who approached the South Gauteng High Court in Johannesburg to interdict the respondents, said if they have not given notice of their intention to oppose his application, an order should be granted in terms of the notice of motion on September 22.

Judge Hlophe’s action follow last month’s recommendation to impeach him by the JSC, which endorsed an earlier decision of the Judicial Conduct Tribunal (JCT) that found him guilty of gross misconduct.

The first part of the 103-page interdict wants the process by the president to suspend the judge stayed, while it also seeks to have the process in the national assembly suspended.

On September 2, Speaker Nosiviwe Mapisa-Nqakula referred the JSC’s letter on the matter to Parliament’s portfolio committee on justice for consideration of procedural aspects.

The letter, signed by acting Deputy Chief Justice and acting chairperson of the JSC Judge Sisi Khampepe, had been received the previous week and confirmed the JSC’s decision to uphold the guilty finding of the JCT, which was appointed to investigate allegations of gross misconduct made by the Constitutional Court judges.

The issue of gross misconduct arose when 11 justices of the Constitutional Court lodged a complaint against Judge Hlophe over 13 years ago, in May 2008.

The allegations were that Judge President Hlophe improperly attempted to influence the Constitutional Court’s impending judgment in the Zuma/Thint matters during discussions with Constitutional Court Judges Baaitse Nkabinde and Christopher Jafta.

At the time, then ANC president Jacob Zuma was challenging the Scorpions’ search and seizure warrants that were used to gather 93 000 pages of corruption trial evidence against him.

In June 2008, Judge Hlophe lodged a counter-complaint against the 11 judges. He accused them of having undermined the Constitution by making a public statement alleging improper conduct on his part before properly filing a complaint with the JSC.

He further complained that by filing the complaint even before they had heard his version of the events, they had violated his rights to dignity, privacy, equality, procedural fairness and access to courts.

In the second part of the application, Judge President Hlophe seeks to have the court declare that the JSC was not properly constituted when it made its findings against him.

He says that this is because “neither the Chief Justice, the Deputy Chief Justice, the president of the Supreme Court of Appeal nor the deputy president of the SCA had formed part of the JSC.”

Judge Hlophe also said that acting Chief Justice Sisi Khampepe was neither the Chief Justice nor a deputy Chief Justice when the JSC decision was taken and that she therefore did not have the legal right or capacity to take part in the JSC proceedings.

Judge Hlophe argues that the four JSC members, Premier Alan Winde, Judge Khampepe, Gauteng Judge President Dunstan Mlambo and SCA Judge Henry Mbha were automatically disqualified from participating at the JCS’s August 25 meeting which endorsed the JCT’s impeachment findings.

Judge Hlophe said there was conflict of interest or reasonable apprehension of bias.

The Tribunal was made up of Judge Joop Labuschagne, a retired judge of the Gauteng division of the high court; Judge Tati Makgoka, a judge of the Supreme Court of Appeal, and Nishani Pather, a practising attorney.

Asked if they had any further comment on the indictment, Judge Hlophe’s lawyer, Barnabas Xulu, said: “Nothing really, we stand by those papers.”

Freedom Under Law chief executive Nicole Fritz said: “We’re aware of Judge Hlophe’s application to stay suspension and impeachment but we have no comment to make at present.

“Once we’ve decided whether and how we might intervene, I’ll be happy to comment.”

Judges Matter campaign research and advocacy officer Mbekezeli Benjamin said the group was concerned that the latest court action by Judge Hlophe would add further delays to a case that has gone on for 13 years and has caused considerable damage to the reputation of the judiciary.

“We recognise Judge Hlophe's constitutional right to take any issue for adjudication before the courts but we hope that the hearing of this case will be expedited so that this matter reaches its finality sooner rather than later,” said Benjamin.

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