A first in South Africa’s post-1994 history occurred this week when a substantial majority of the Judicial Service Commission (JSC) voted to uphold a gross misconduct finding against Western Cape judge president John Hlophe. This decision by the JSC paves the way for an impeachment process by parliament. In order to unpack the process and the allegations against Hlophe, BizNews spoke to Paul Hoffman SC from Accountability Now. While many many hope that this is a turning point for the country, Hoffman stated frankly that ‘I think the turning point should have come many years ago. If he is impeached, which I doubt will happen, but if he is impeached – that will be an indication that the ANC s commitment to the rule of law is genuine and not lip service to the rule of law. If the ANC votes in his favour, it will be a turning point towards the cliff that is marked ‘failed state’.’ – Nadya Swart
Paul Hoffman on the Judicial Service Commission’s position in respect of Judge Hlophe:
The position at the moment is that the Judicial Service Commission has by a vote of eight to four – so it’s a split decision – come to the conclusion that it has to recommend to parliament to impeach. It’s not the function of the Judicial Service Commission to do the impeaching. It’s their function to advise parliament on it.
And with this split decision, it has so decided – its majority is of the view that Judge President Hlophe is guilty of gross misconduct in relation to the way that he meddled with the judges who were sitting on an important Jacob Zuma case just before Jacob Zuma became president for the first time in South Africa, which was, well, a very long time ago.
On the allegations against Hlophe:
Look, there are many others and he has been on the carpet before – and the carpet at the JSC has lots of lumps in it because they’ve swept all previous cases against Hlophe under the carpet. So let’s leave them there for the purpose of this discussion because we haven’t got all afternoon. In this case; the complainants are the then judges of the Constitutional Court, two of whom were approached by Hlophe to meddle in their decision making process.
That’s a very polite way of saying that he was attempting to defeat the ends of justice by influencing the decision of an impartial and independent court that should be left to its own devices to come to a decision in the case. And it’s that complaint that has taken 13 years to get to the point where we now have a vote. But that’s not the end. It’s just the beginning of the end or it might actually be the end of the beginning.
On what Hlophe’s next steps may be:
The next thing that Hlophe will do if he runs true to form is that he will take on review the decision of the majority. That means he has to approach the high court. He will probably use the reasoning of the minority and maybe some other arguments of his own. We haven’t seen either yet because all we know is that the decision has been reached. We haven’t seen the reasoning in the decision.
So it’s likely that he will wish to exercise his right to review and that he does in the high court. And if he is unsuccessful in the High Court, it is likely that he will appeal to the Supreme Court of Appeal. If he fails in the Supreme Court of Appeal, then some will argue, ‘Well, that’s the end of the matter and parliament must now get on and consider whether it is prepared to impeach him.’
If the Constitutional Court takes the attitude that it’s not in the interests of justice for him to have another appeal to the very institution that has complained against him – because even though the judges are not the same judges anymore, it is the justices of that institution that have laid the complaint – then his litigation route ends with a refusal of his application to go there. Of course, if they do let him in the door, he gets a further delay and a further opportunity to filibuster and practice the Stalingrad strategy that Jacob Zuma has made famous.
On how long this process could take in the event that Hlophe exercises all these stalling tactics:
Well, I have to tell you that the earliest date upon which he can retire is May 2024 and, carefully handled, you could make all of those reviews and appeals last until, pretty well, then or thereafter. But there’s another strategy that he may follow. He may say, ‘Listen here, you need a two thirds majority vote in parliament.’ He has friends definitely among the Travelgate fraudsters who were allowed to remain in parliament because he rubber stamped plea bargains that kept them eligible to remain in parliament. And, you know, he is the first black judge president in South Africa. I think he is regarded by the ANC caucus as a loyal friend and comrade of the ANC.
So where there is a split decision of the kind that is apparently the situation in the Judicial Service Commission, then – with a fairly clear conscience – the friends of Hlophe in the ANC caucus, who are numerous enough to prevent the special majority that is required from being won in parliament, will say, ‘No, you can’t possibly impeach the first black judge president in South African history!’ And he will sail on all the way to his retirement – however soon or late he chooses to do so. The earliest he can retire is in 2024. If he chooses to, he can stay on until he’s 70 and continue to dispense the form of justice that we have become used to from him in the Cape High Court.
On the consequences Hlophe faces if he is impeached:
If he is impeached at any stage, he loses his pension rights. And even if he’s impeached after he retires, he will lose his pension plans. But if he’s not impeached, he won’t lose his pension rights. So really, what this thing is about – if it is handled in his traditional way of using every legal process and device available to him – is that there will be an argument about whether or not he should have a pension. There is another possibility and it came quite close to it at one stage long ago, and that is that a negotiated settlement can be arranged – which will have him out of office, but not out of his entire pension. And that is a possibility.
On whether this development is a turning point for South Africa:
Well, no, I don’t think so. I think the turning point should have come many years ago. If he is impeached, which I doubt will happen, but if he is impeached – that will be an indication that the ANC s commitment to the rule of law is genuine and not lip service to the rule of law. If the ANC votes in his favor, it will be a turning point towards the cliff that is marked ‘failed state’. But if they vote him out of office, it will be a turning point that indicates that we are back on the paths of rule of law, constitutionalism, separation of powers and respect for an independent and impartial judiciary – not a judiciary populated by deployed cadres of the ‘cadre deployment committee’ that sits in a smoke filled room at the back of Luthuli House and does not keep minutes of its deliberations. If we are to believe what our president told us at the Zondo Commission a week or two ago.
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