South Africa

NEWS ANALYSIS: JUDICIARY IN CRISIS

Death by affidavit: John Hlophe throws a 569-page whopper at court to stop impeachment 

Western Cape Judge President John Hlophe. (Photo: Gallo Images / Foto24 / Nelius Rademan)

A weighty notice of motion was filed on behalf of Western Cape Judge President John Hlophe on 13 September against the Judicial Service Commission (JSC), the President of South Africa, the Minister of Justice and Correctional Services and the Speaker of the National Assembly.

The Judge President of the Western Cape’s legal representative, Barnabas Xulu — who was found by Judge Phillip Zilwa on 5 August to have acted improperly in another matter related to R20-million he owes to the state in ill-gotten legal fees — appears to still be lawyering up for Hlophe in this last-ditch bid to salvage his nosediving career.

Hlophe’s long walk into what everyone knows is a legal cul-de-sac ended on 25 August when the JSC announced it had decided to uphold an April 2021 report and recommendation of a Judicial Conduct Tribunal that Hlophe face impeachment.

In a late-night briefing On 8 September,  in preparation for the potential impeachment vote by the National Assembly, parliament’s committee on justice and correctional services began tightening the procedural legal nuts and bolts of the process when it met with Parliament’s legal advisers who stated clearly that the guilty verdict by the JSC could not be altered and would stand during the impeachment vote process. 

The role of the NA was that of accountability and strictly circumscribed members were informed in no uncertain terms. No new inquiry would be conducted, as the first stage of the impeachment process — the guilty verdict by the JSC — was set in stone.

It took five days for Xulu to collate the 569 pages in which he seeks to save his controversial client from walking the impeachment plank.

What both Hlophe and his lawyer should understand by now is that no court at this stage has stopped Parliament from fulfilling its constitutional duty.  

Nonetheless, we leave it there for nature and the law to take their course.

Hlophe is hoping firstly that the application will be regarded by the court as an urgent one, that he will stave off suspension by the President as well as stick a spoke in the already-grinding wheels of Parliament’s impeachment process.

Going all the way, Hlophe intends to argue that the JSC was not legally constituted when it made its findings in the first place.

The damning evidence which led to the finding of gross misconduct — in that Hlophe flew up to Joburg and made a turn at the Constitutional Court in 2008 prior to a matter involving former president Jacob Zuma — is not contested. 

We have sat with the intricacies of this shameful episode for 13 years so we know the ins and outs.

Hlophe begins his legal shotgun by targeting almost everyone in the JSC.

“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,” he states adding that Section 1781 (a) and (b) read with section 178 (7) of the Constitution were not complied with.

Acting Chief Justice, Sisi Khampepe was neither the Chief Justice nor a Deputy Chief Justice at “the taking of the JSC decision” and that she, therefore, did not have a lawful standing to participate, claimed Hlophe.

Sections 178 (1) (f) and 178 (8) of the constitution were ignored also, he argued, in that “a practising attorney nominated from within the Attorneys’ profession to represent the profession as a whole and appointed by the President was also not part of the meeting”.

Just to clear it all up, Hlophe adds that President Cyril Ramaphosa was not asked to appoint “an alternate for the said absent member of the attorney’s profession.”

Khampepe and Judge Boissie Mbha “lacked the constitutional standing to participate in the JSC meeting” and their presence there “rendered the proceedings a nullity,” said Hlophe.

Turning the barrel on JSC members, Hlophe said that Khampepe, Mbha, Judge President Dunstan Mlambo and Premier of the Western Cape Alan Winde, all had conflicts of interest or “bias or reasonable apprehension of bias” and were “automatically disqualified from participating”.

Tossing in a smoke bomb to add to the mirrors, Hlophe opined that proceedings and decisions taken “were therefore unconstitutional and invald”. Over and above that, the majority decision handed down by the JSC was also invalid and had to be set aside.

Hlophe wants the Judicial Conduct Tribunal report tossed on the scrap heap of history as a cherry on top of the pyre.

The findings of the majority, he added “violated the right to equality”.

The respondents were requested by Hlophe to respond by Wednesday 15 September. DM

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All Comments 19

    • If you are waiting for Ramaphosa to do the right thing you are going to wait until the next extinction level event meteor strikes earth.
      He had 5 years to right so many wrongs, but instead, he moved Arthur Frazer into a position which he KNEW will get Zuma parole. Half his cabinet are obvious criminals.
      Priority list for CR is as follows:
      1) Personal wealth for himself (at any cost)
      2) Personal wealth for his billionaire family (Patrice etc etc etc)
      3) Personal wealth for ANC cadres (at any cost)
      4) Personal wealth for ANC donors – though that became a bit more difficult with recent changes
      5) ANC
      6) Unions
      7) SACP
      8) And then ver ver ver last by a long shot – the tax payers in SA.

  • The real concern here is the lack of integrity & shame from a person who should be held & should hold himself to a much higher standard. We know that politicians, and ANC politicians in particular, do not have a shred of integrity nor self esteem nor shame, but a senior judge – the mind boggles!

  • Brilliant Marianne, you nailed the arguments presented in one of the shortest articles I’ve read in a looong while.
    569 pages of posturing, asides and smoke bombs whittled down to: narcissistic persecution syndrome.

  • clients and lawyers are each known by the company they keep.

    With the gangster drug dealers and their pond scum attorneys, it usually ends in one or both shot up in a driveway – probably gotten there by opposing gangs and/or learned colleagues, with respect.

    Who beside Hope / Zuma would still use Barnabas Xulu? unless they wanted to attract serious media attention?

  • I take my hat off to you Marianne for wading through 569 pages and I’m so sorry you had to do it!
    But thank you for putting it together so succinctly for the rest of us who don’t have the time / inclination 🙏🏽🙏🏽🙏🏽.