Last week Judge President John Hlophe’s controversial lawyer, Barnabas Xulu, told eTV that Hlophe planned to take the Judicial Conduct Tribunal (JCT) report that found him guilty of gross misconduct on review to the high court. If the review proceeds, it will halt the Judicial Service Commission (JSC) process in its tracks. It could then take months or even years before the JSC finally decides whether to endorse the JCT finding or not. 

Whatever the merits of such a review application might be (for now, I express no opinion on the matter), the failure of the JSC to suspend Hlophe (thus allowing him to participate in the JSC interviews of candidates for appointment to the high court this week) cannot be squared with its duty – imposed by section 165(4) of the Constitution – to “assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”. 

As is often the case in high profile, politically charged, cases, some politicians and politician-lawyers (and those who blindly follow them), are likely to take an unprincipled stance on this matter, opposing suspension based on their support for Hlophe and the political project they may believe he is aligned with. It might therefore be helpful to reflect on the legal principles that the JSC should apply when deciding on suspension in any case where the JCT had found that a sitting judge is guilty of gross misconduct. Put differently, one should ask what would have been appropriate had the guilty judge been somebody whose judgments and actions you disagree with.

It is important to note at the outset that the purpose of suspending a judge (as with the suspension of any other head of a constitutionally independent institution) is not to punish that judge, and should never be used for that purpose. In any event, it would be inappropriate to punish somebody before a final decision has been taken on their guilt. 

The true purpose of suspension is to protect the independence, impartiality, and effectiveness of the courts. While the Constitution contains important provisions safeguarding the institutional independence of the judiciary, this is not the end of the matter. The independence and effectiveness of the judiciary will also be weakened when its legitimacy is eroded and when the decisions and judgments of an individual judge are tainted because the judge has been found guilty of gross misconduct. (This is why the coalition of the implicated has launched a full-frontal attack on the judiciary and on those judges who, interpreting and applying the law to the best of their ability, have ruled against implicated individuals.)

In Helen Suzman Foundation v Judicial Service Commission the Constitutional Court reminded the JSC that the judiciary will only be able to continue to fulfil its important functions if it continues to be a strong institution that carries public confidence and support. “Its ultimate power”, said the court, “must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity.”

When the JCT rules that a judge is guilty of gross misconduct, it raises serious questions about that judge’s suitability to remain on the bench. Inevitably, all judicial decisions taken by that judge after a guilty verdict by the JCT and before the matter is finalised would be tainted by such a finding. When the finding of gross misconduct is linked to the alleged dishonesty and lack of impartiality of that judge, the credibility of such decisions would be fatally compromised as it would create a reasonable apprehension of bias and dishonesty on the part of the judge. 

Not many litigants would want to appear before such a judge, and few judges would agree to sit on the same bench with such a judge for fear of being tainted themselves. When the implicated judge serves as Judge President of a court, the potential negative impact on the credibility of that court would be grave, as the Judge President is intimately involved in the selection of acting judges and permanent judges case allocation and other court matters. 

This is not a controversial view. One only needs to imagine a situation where a judge found guilty of gross misconduct by the JCT is asked to preside over Jacob Zuma’s corruption trial before the JSC has made a decision on whether to endorse the finding or not. Zuma would rightly argue that this is untenable, and (for once) he would be correct. The legitimacy of the trial and its outcome would be fatally compromised. 

In 2016 the JSC accepted this general proposition when it wrote in a letter to Freedom Under Law (FUL) that in the “absence of suspension from office or a guilty verdict by the Tribunal … there is no bar preventing Judge President Hlophe from carrying out his responsibilities as the JP of the WCHC”. But last week the JSC spokesperson claimed that the JSC can only recommend that President Cyril Ramaphosa suspend Hlophe once it has endorsed the tribunal’s report, found the Judge President guilty of gross misconduct and referred his impeachment process to the National Assembly.

This claim is incorrect – as the JSC’s own previous decisions illustrate. Last year the JSC recommended the suspension of judges Nana Makhubele and Mushtak Parker after complaints against them were referred to the JCT for a hearing. Despite the fact that neither of the judges had been found guilty of gross misconduct by the Tribunal, let alone by the JSC, that body recommended their suspension because this is what it is permitted to do by section 177(3) of the Constitution, which states that the “President, on the advice of the Judicial Service Commission, may suspend judge who is the subject of” an impeachment procedure.  

The section allows the JSC to recommend suspension once it decides that a complaint of gross misconduct should be referred to the Tribunal as the implicated judge then becomes subject to the impeachment procedure. This is confirmed by section 19(4) of the Judicial Service Commission Act which states that whenever the Commission requests the appointment of a Tribunal the Commission must inform the President and must advise the President on whether the judge should be suspended or not. This is exactly what the JSC did in the cases of judges Makhubele and Parker.

The claim by the JSC that it cannot recommend Hlophe’s suspension, therefore, makes no sense. The fact that section 19(4) of the JSC Act specifically empowers the JSC to recommend suspension once the matter is referred to the Tribunal does not mean that the JSC only has one chance to recommend suspension. While the Act is silent on this, section 177(3) of the Constitution empowers the JSC to recommend suspension at any time after the matter is referred to the Tribunal. 

As the Constitutional Court held in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others, legislation cannot water down powers bestowed on an institution by the Constitution. The court pointed out that “our Constitution is the supreme law of the Republic” and “is not subject to any law including national legislation unless otherwise provided by the Constitution itself”. 

This means that the failure of the JSC to recommend the suspension of Judge President Hlophe, is not (as claimed) based on its lack of power to do so. Confronted with the choice between acting in the best interest of the judiciary, and acting in the best interest of Hlophe, the JSC chose to do the latter. In doing so, it has failed to protect the esteem in which the judiciary is held. 

The JSC has given no reasons for acting in such a reckless manner and has not explained why it is treating Hlophe differently from other judges who are the subject of impeachment procedures. But if this decision is taken on review, it is likely to be set aside for being irrational. 

This is, first, because the JSC is misinterpreting the law by arguing it has no power to suspend Hlophe at this point. Second, there is no rational relationship between its decision and the purpose for which the power to recommend suspension is given. In fact, the decision achieves the opposite of what the Constitution intended as it will lower the esteem of the judiciary in the eyes of the public. Third, as Hlophe is the Judge President and therefore wields far more power than the other implicated judges, and given that the Tribunal has already found Hlophe guilty of gross misconduct, the decision by the JSC to treat Hlophe differently from other implicated judges also points to irrationality.

The question that remains unanswered is why the JSC is refusing to protect the esteem and integrity of the judiciary. Is this a case of friends or colleagues protecting each other, or is the JSC inserting itself into factional political battles? Whatever the reason, the failure of the JSC to act has further tarnished its already threadbare reputation.   DM

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance.