If the National Assembly adopts this recommendation with the constitutionally required two-thirds majority, it would be an unprecedented step. But it is a strong likelihood, as all parties agreed on Wednesday, except the EFF, whose recently sworn-in MP Busisiwe Mkhwebane on 11 September became the first Public Protector to be removed from office.

Once the National Assembly approves the judges’ removal from office — it means the loss of benefits such as the salary for life members of the judiciary receive to ensure their independence — President Cyril Ramaphosa must officially remove the judges, according to section 177 of the Constitution.

After Wednesday’s separate committee discussion for each judge, the justice committee chairperson, Bulelani Magwanishe, concluded deliberations.

“By a majority view, we will recommend to the National Assembly that Judge Nkola Motata be removed from office,” said Magwanishe, to which Mkhwebane interjected that the EFF “vehemently” opposed this.

After further discussions, Magwanishe said, “The committee by majority decision will recommend to the National Assembly that Judge President John Mandlakayise Hlophe be removed from office.”

It has taken more than 15 years to get to this point — with many twists and turns. 

Retired Judge Nkola Motata ran out of legal appeals against his 2007 drunk driving and racism charges and the related gross misconduct finding by the Judicial Service Commission (JSC). In late August, the matter was referred to Parliament.

Read more in Daily Maverick: The Motata ruling – Structural and human problems behind failure of JSC to protect integrity of judicial system

Ditto, Western Cape Judge President John Hlophe who was informed of his suspension by President Cyril Ramaphosa on 14 December 2022. In September time ran out on his appeals against the JSC finding of gross misconduct for trying to influence two Constitutional Court judges in a 2008 case involving former president Jacob Zuma.

MPs had held off on parliamentary considerations in August 2021 when the matter was referred to Parliament to allow Hlophe to pursue court appeals. 

On 24 October, the parliamentary justice committee called for the two judges to make representations by mid-November on the Section 177 proceedings. Both judges argued that the MPs had no jurisdiction.

Hlophe, in correspondence, argued the committee should look into why funding for his legal appeals had been stopped, particularly as the courts held that the merits of his case had not been settled.

Read more in Daily Maverick: John Hlophe — the Judge President who fought the law; decades later, the law won

“There is clear evidence of political interference in the matter of Judge President Hlophe in terms of which a political party, working together with an NGO that was specifically formed to ensure the removal of Judge President Hlophe, campaigned publicly and privately to achieve this contested JSC result,” the suspended Judge President’s submission read.

Motata, in his correspondence, argued that the JSC had made no clear gross misconduct finding, and if MPs proceeded it would be tantamount to double jeopardy as he had already paid a fine of R1,152,650.40 to the South African Judicial Education Institute.

This was raised by the justice committee chairperson in correspondence to Chief Justice Raymond Zondo, requesting clarity on the JSC finding against Motata.

Following a meeting of the JSC without the political members on 17 November, Zondo responded to Parliament that the gross misconduct finding was upheld. Regarding the fine, which has since been reviewed and set aside by the Supreme Court of Appeal, that was a matter between the JSC and the judge. 

“[This] does not prevent the National Assembly from proceeding with its deliberations under Section 177(1) of the Constitution.”

And that’s what happened on Wednesday.

Like Mkhwebane’s appeal of ubuntu for Motata, her argument that Hlophe should be allowed to exhaust appeals was rejected by other MPs as there has not been any movement on the appeal to date. It was in the public interest these matters were concluded.

Referral to Parliament under Section 177 of the Constitution for a final decision on a judge’s removal from office is one of the constitutional checks and balances in this process. But it was not a reopening of the disciplinary hearings, according to the parliamentary legal advice to the justice committee.

In legal ranks, the only similar incident has been Ramaphosa’s 2019 sacking of the deputy national director of public prosecutions Nomgcobo Jiba and specialised commercial crimes unit boss Lawrence Mrwebi. The National Prosecuting Authority Act required parliamentary approval for this — MPs could also have decided to restore the two state advocates to office in this statutory check and balance mechanism.

The National Assembly must now schedule a vote on removing the two judges from office in terms of section 177 of the Constitution, which could happen before Parliament rises for the year-end recess by 8 December. DM