Back in 2008, the then newish Western Cape Judge President John Hlophe already had a chequered disciplinary track record and a rather charmed life, given the number of run-ins he had had with the disciplinary machinery of the Judicial Service Commission (JSC). Instead of taking advantage of the slack he was cut in the early years of his judicial career, he has repeatedly challenged the system in clashes with colleagues, not only in his own division, but also in both higher courts. Those incidents have been written about already and need not be repeated now.

In May 2008, the then justices of the Constitutional Court accused Hlophe, in effect, of attempting to defeat the ends of justice by interfering with two of its members in an effort to influence the outcome of a pending appeal. He wanted them to arrive at a decision favourable to Jacob Zuma, then a private citizen with presidential aspirations.

After a long and tortuous journey, the complaint was eventually heard on its merits in 2020 and earlier this year the Judicial Conduct Tribunal (JCT) found Hlophe guilty of gross misconduct. It recommended that he face a vote in Parliament in which his removal from office will eventuate if he is unable to persuade more than a third of the members that he is not deserving of so ignominious a fate.

The recommendation of the JCT has to be considered and voted on first by the full JSC (excluding political appointees) on the question of whether he is, as so found, guilty of gross misconduct for interfering with judges Bess Nkabinde (now retired) and Chris Jafta as they mulled the decision in the Zuma case.

When the JSC convened recently to consider its vote on the matter, Judge Monde Ishmael Samela, 14th in the list of seniority on the Western Cape Bench, presented himself as the designee of Hlophe to participate in the deliberations. That Hlophe could even contemplate making any designation is unthinkable on any proper construction of the applicable legal principles. No person accused of wrongdoing, impropriety or misconduct is entitled to select who will sit in judgment of his case.

Hlophe apparently seeks to rely on a provision in the Constitution that patently does not apply to the disciplinary processes of the JSC, and can’t, in any event, be invoked by him due to the conflict-of-interest situation in which he finds himself. The provision is section 178(1)(k) of the Constitution which, insofar as relevant, reads “when considering matters relating to a specific High Court, the Judge President of that Court… or an alternate designated by [him]”.

The fitness or otherwise of Hlophe for judicial office is clearly not the type of matter contemplated by the section, and even if it were so, it is not legally sound for Hlophe to designate his alternate. Why he should designate the little-known and relatively junior Judge Samela is a mystery that it is not legally relevant to attempt to solve.

The effect of the “mis-appointment” of Judge Samela on the disciplinary proceedings of the JSC is now a matter of some moment. That he should not be serving on the JSC is patently clear. That no one seems to have the courage, energy or determination to take on the impropriety of the designation at this stage is perhaps attributable to the hope that the irregularity of the appointment of Samela is an irrelevant consideration that is immaterial to the outcome of the vote in the JSC on the issue of whether or not the evidence before the JCT reveals gross misconduct on his part. Of course, if the JSC divides equally on the question, or if Samela has the swing vote, the materiality of the impropriety in his appointment may be decisive of the outcome of the vote but not necessarily its validity in law.

As the synod of the Dutch Reformed Church discovered when it litigated in the Privy Council in the 19th century, any invalid voting by those not entitled to vote vitiates the proceedings. Similarly, Lord Leonard Hoffmann in the Pinochet matter learnt to his chagrin that his failure to recuse himself when he should have, rendered the judgment to which he was a party null and void.

More recently in the Allpay litigation around administering Sassa grants, the Constitutional Court held, in the context of procurement regulations, that the materiality of compliance with legal requirements depends on the extent to which the purpose of the requirements is attained. It found that the improper constitution of a committee was immaterial on the facts and in the larger scheme of things including the public interest in having social grants paid on time. It refused to invalidate the limping committee’s decision-making.

It could, depending on the vote of the JSC, be argued that the invalid inclusion of Samela in the decision-making processes of the JSC is sufficiently on all fours with what went on in the Allpay case. It can hardly be argued that the public interest will not be served by reaching finality in the long-running “Hlophe saga”.

It is a racing certainty that, if the JSC decision is not in his favour, Hlophe will litigate its validity, legality and rationality. It is not beyond the bounds of his capacity to argue that Samela irrevocably tainted the process by his mere presence and participation in the proceedings of the JSC.

It is open to Samela, upon sober reconsideration of his position, to recuse himself from the deliberations of the JSC. It might be a wise career move in addition to being the right thing to do.

It is also open to the JSC to reverse its decision to accept Samela as the designated alternate of Hlophe, both because the section quoted above does not apply and more so because Hlophe himself could never in a million years have validly appointed Samela, or anyone else, to be his alternate in the matter. That designation is legally unthinkable in a situation in which the professional future of the person making the designation is at stake.

One can only hope, if Samela does not recuse himself, that there are enough good lawyers on the JSC to enable it to fashion a legally sound solution to the potentially calamitous situation that now presents itself. It would be a great pity if the upshot of the matter is further litigation, long delays and also, heaven forbid, a rehearing of some kind.

The Council for the Advancement of the South African Constitution is already suing the JSC for the manner in which it conducted interviews of candidates for the current vacancies in the Constitutional Court. The original proposer of the establishment of the JSC, Tony Leon, has recently expressed serious misgivings about the way in which his brainchild goes about its functions.

Hlophe was born on 1 January 1959 and was appointed to the Cape Bench (as it then was) in 1995, meteorically rising to his current position in 2000. He was the first full-time academic to be appointed to the High Court Bench. He ought not to be allowed to litigate the matter into his retirement years. Do the mathematics: any judge who completes 20 years of service before turning 65 has the right to leave active service upon turning 65. Hlophe will do so on 1 January 2024.

Members of the public can draw comfort from the knowledge that the JSC is obliged to respect, protect, promote and fulfil their constitutionally guaranteed right to access to justice in the courts over which Hlophe presides. The members of the JSC know that they are obliged to conduct themselves “diligently and without delay” in adjudicating Hlophe’s fitness for office on pain of having any of their conduct that is inconsistent with the Constitution set aside as invalid. Compliance with the law can bring the Hlophe saga to a swift and sure end. DM