The Judicial Service Commission (JSC) issued a statement late on Monday after a meeting constituted without members designated by the National Assembly and the National Council of Provinces that had “deliberated” on the matter of Western Cape Judge President John Hlophe.

The commission had “resolved to advise the President to suspend Judge President Hlophe in terms of section 177 (3) of the Constitution”.

This was following a decision that the JSC made on 25 August 2021 in terms of section 20 (3) of the Judicial Service Commission Act that Hlophe was guilty of gross misconduct.

The recommendation comes in the wake of the dismissal by a Full Bench of the Johannesburg High Court of Hlophe’s bid to overturn a Judicial Conduct Tribunal finding of gross misconduct against him.

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.

At the time, 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, Hlophe had abandoned an application to halt his possible suspension by the President.

Now, however, Hlophe faces the start of the end of the road in a long career pockmarked by controversy. 

Hlophe will be the first judge in democratic South Africa to face impeachment.

On 9 April, the Judicial Conduct Tribunal unanimously found Hlophe guilty of gross misconduct in that he had tried, in 2008, to influence two Constitutional Court judges to “violate their oaths of office” and to rule favourably in a matter involving former president Jacob Zuma.

During the tribunal hearing in December 2020 the chair, Judge Joop Labuschagne, stripped away Hlophe’s defence, stating: “Throughout the 12-year period, the complaint has simply been that he [Hlophe] had sought to improperly influence the outcome of the Zuma-Thint application pending in the Constitutional Court. Justice [Bess] Nkabinde and Justice [Chris] Jafta never changed their version of their encounters with Judge President Hlophe.”

In May 2022, judges Aubrey Ledwaba, Margaret Victor and the acting Judge President of the Gauteng High Court, Roland Sutherland, set aside Hlophe’s bid to overturn the decision of the JSC.

The judges said the Hlophe saga was “unique in the history of any judiciary”.

They said that should the court 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 the checkmate stage. Such a perspective would constitute both an abuse of court processes and a monumental waste of scarce judicial resources.”  

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

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. DM