The Judicial Service Commission (JSC) is “considering” the dismissal by a full Bench of the Gauteng High Court of Western Cape Judge President John Hlophe’s challenge to findings of gross misconduct against him. 

Judges Aubrey Ledwaba, Margaret Victor and the acting Judge President of the Gauteng High Court, Roland Sutherland, on Thursday set aside Hlophe’s bid to overturn the decision of the JSC.  

Hlophe had sought to have the matter referred back to the JSC or the National Assembly to be “reheard”.

Hlophe’s application was opposed by National Assembly Speaker Nosiviwe Mapisa-Nqakula on the basis that it was “impermissible and unsustainable”.

On Thursday, the full Bench said that should it take into account Hlophe’s rigid interpretation of section 178 of the Constitution, which deals with the composition of the JSC, “we come to an absurdity”.

Namely, that “a judge who has been found guilty by the [Judicial Conduct] Tribunal of committing serious breaches of the Constitution, including interfering with the functioning of the courts in flagrant contradiction of section 165 [of the Constitution], is untouchable”.

The court added that the JSC process was “not a game of chess poised at checkmate stage. Such a perspective would constitute both an abuse of court processes and a monumental waste of scarce judicial resources.” 

Hlophe had argued that procedural deficiencies had afflicted the JSC when it considered and decided the matter. He alleged that the composition of the JSC at the time was not proper. 

The court ruled that it was indeed “constitutionally sound” and that the decision of the JSC “stands”.

In September 2021, a month after the JSC confirmed the April findings of the tribunal, the commission, through its former secretary Sello Chiloane, stated that it would not be recommending that Hlophe be suspended until his court challenge had been finalised.

In papers filed with the court, Chiloane stated that the JSC did not intend to recommend Hlophe’s suspension “until his application is decided”.

“This must be understood to include appeal. There is neither urgency nor immediate harm faced by Judge President Hlophe. The fact of the matter is that section 117(3) allows the President to suspend a judge only on the advice of the JSC,” said Chiloane.

As a result of this undertaking by the JSC at the time, Hlophe had abandoned an application to halt his possible suspension by the President.

On Thursday, responding to questions from Daily Maverick, the JSC secretary, Yvonne van Niekerk, said: “The JSC is still considering today’s judgment” and would issue a statement “if and when it deems it necessary”.

The Hlophe matter must rank as the most serious crisis the SA judiciary has faced and has dragged on for more than 13 years. The judges on Thursday referred to it as “unique in the history of any judiciary”.

The court added that the JSC process was “not a game of chess poised at checkmate stage. Such a perspective would constitute both an abuse of court processes and a monumental waste of scarce judicial resources”.

Hlophe was found guilty of attempting in 2008 to influence two Constitutional Court justices, Chris Jafta and Bess Nkabinde, in a matter involving former president Jacob Zuma.

Should matters run their course, Hlophe will become the first judge in post-apartheid South Africa to be impeached for gross misconduct.

Chiloane’s earlier submission to the court suggests that the JSC expects that Hlophe will appeal against the ruling handed down this week, which will no doubt prolong the agonising process while Hlophe continues to head the troubled Western Cape Division of the High Court.

In his challenge, Hlophe had wanted the National Assembly to conduct a “rehearing” of the evidence, rather than voting on his impeachment. 

He also argued that the JSC had not been properly constituted in August when it confirmed the findings of the tribunal and referred the matter to the National Assembly.

Judges Sisi Khampepe and Dunstan Mlambo, argued Hlophe, were disqualified from participating in the meeting where the JSC had reached its final decision. This is because they had previously made adverse findings against him.

He further claimed that Supreme Court of Appeal Judge Boissie Mbha had lacked the “standing” to represent the division.

On Thursday, the court said that “regard has to be had to the need to ensure the consistent functioning of the judiciary. Matters of gross misconduct on the part of a judge and subsequent questions of impeachment lie at the heart of the integrity of our judicial system.”

The JSC facilitated constitutional functions that needed to be facilitated and not stunted, said the court.

“Thus, to accept that the JSC is paralysed solely because it cannot meet its compositions requirements is a position that is impossible to defend.

“In the absence of Judge Mbha, the JSC would be paralysed and unable to make a determination on this matter. It is unimaginable that the Constitution would expect absolute adherence to formalism in circumstances where it causes such paralysis.”

On Hlope’s interpretation, it would be possible “to shut down the entire JSC by merely contaminating the section 178 (1) (a) and (b) members and then claiming that nobody is empowered to act in their stead”.

The court also found that Khampepe’s appointment at the meeting of 21 August, to decide on the Judicial Conduct Tribunal findings, had been “constitutionally compliant”.

So too was the appointment of Judge Mlambo, who was elected by the other Judge Presidents to sit on the matter.

Attacks on the decision by the JSC by Hlophe that he was guilty of misconduct were rather “claims that a disappointed litigant might offer in appeal. Such grievances do not warrant attention by this court.”

Hlophe’s “generalised expressions” did little to “illuminate exactly what the tribunal and the JSC omitted to do which is alleged to be improper”.

The JSC jury had voted  10 to eight to adopt the Judicial Conduct Tribunal’s finding and the court found that both the tribunal and the JSC had acted “as they were lawfully required to do so without exceeding their statutory powers”.

Hlophe had been given the opportunity to present his perspective at “every step of the process, from the initial accusation to the final consideration”.

Critical evidence presented was that the Zuma cases had been heard and that the judges were engaged in preparing the judgment. One of the issues had been the propriety of a police raid on Zuma’s attorney’s offices.

The Western Cape Judge President had initiated meetings with two of the sitting judges during this period of preparation, said the court.

Hlophe had brought up the Zuma cases and the legal matter which had arisen and had opined to Jafta that the SCA had been “wrong” on the question of privilege, a critical issue in the Zuma cases and that this “error of the SCA had to be corrected”.

The JSC did not accept that Hlophe had had no intention to influence the judges and that he had been “ignorant of an axiomatic norm of ethical behaviour among judges restricting their discussion about pending judgments”.

The role of the JSC was not to decide whether Hlophe should be removed from office — this was the job of the National Assembly, said the court.

“The National Assembly does not revisit findings of gross misconduct; that is a given.” 

“Persons who assume the office of a judge must work assiduously to manifest good character by demonstrating integrity in the detail of their life and their work, not be granted a free pass.” 

An argument advanced by the amicus, the Black Lawyers Association, had sought to engage the court with the notion of a “threshold of misconduct” having to be established, and that it would be proper that there be a “presumption of judicial integrity that had to be displaced in order to make a finding of gross misconduct”.

“First, the notion that a judge should be shielded by such a presumption when examining an allegation of an ethical breach is plainly wrong.

“Persons who assume the office of a judge must work assiduously to manifest good character by demonstrating integrity in the detail of their life and their work, not be granted a free pass.” 

Hlophe’s claim to freedom of expression in his dealings with fellow judges, the court found, was “misconceived”.

“There is no room to prevaricate about the role of a judge requiring the imposition of several ethical restraints to which the general public are not bound,” said the court.

Though everyone was at liberty to think what they like, judges are bound to conduct themselves at all times “in a manner that protects and promotes the integrity of the legal process”.

In that context, it was not open to a judge to “blurt out his preferences, biases or opinions to a fellow judge who, to his knowledge, is preparing a judgment on those very issues about which he has a firm view”.

With regard to the role of the National Assembly, the court stated that the structure of section 177 (1) (a) “plainly provides that a judge can be removed if the JSC finds that the judge is guilty of gross misconduct”.

This finding was a “jurisdictional precondition of the National Assembly contemplating a resolution to remove a judge”. This was not a decision the JSC made on its own, the court said.

When the National Assembly resolved to remove a judge it had to be with the supporting vote of at least two-thirds of its members. In terms of section 177 (2), the President must then remove the judge from office at the adoption of such a resolution.

There was no provision for a rehearing of the complaint.

Hlophe’s argument that the National Assembly could not be reduced to a “rubber stamp of the JSC” was without merit, the court found.

“This misconstrued the scheme of the Constitution which assigns different roles to the JSC and to the National Assembly, not overlapping roles.” 

The court added that neither the National Assembly nor the JSC were subordinate to each other.

“The JSC is vested with the power to make a decision based on the norms of judicial ethics. The National Assembly makes a political decision.”

Finally, the court found that a finding by the JSC on gross misconduct by a judge “is unprecedented”.

“Its impact on the judge is self-evidently devastating. The review application has raised constitutional issues of importance which required elaborate traversing to elucidate the legal position.”

As a senior Judge President, Hlophe should have been “sensitive to the rigid north star for judges performing their duties impartially and without fear, favour or prejudice”.

In this instance, Hlophe’s “litigation mission” was really aimed “at avoiding the far-reaching and devastating consequences to him personally should he be impeached” and could not be labelled mala fide (in bad faith). 

Therefore, the parties in the matter were ordered to all pay their own costs. DM

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