Cape Town - While calls are mounting for President Cyril Ramaphosa to suspend Western Cape High Court Judge President John Hlophe, his lawyer said it could all come to nothing should the Supreme Court of Appeal set aside the Judicial Tribunal finding which recommended Hlophe’s suspension.
On Monday, a JSC statement read: “At its meeting on Monday, July 25, 2022, the Judicial Service Commission (JSC)... deliberated and resolved to advise the president to suspend Judge President Hlophe. This is following the decision of the JSC on August 25, 2021... that Judge President Hlophe is guilty of gross misconduct.”
Hlophe was found guilty of gross misconduct in April 2021 by the Judicial Conduct Tribunal after allegations that he tried to influence the outcome of a pending Constitutional Court matter involving former president Jacob Zuma in 2008.
The JSC indicated its decision was made by all commissioners, save for the members of the National Assembly and National Council of Provinces, but including Premier Alan Winde.
Hlophe’s lawyer, Barnabas Xulu, SC, said that while the ball might be in Ramaphosa’s court on Hlophe’s suspension, this might all be undone if the SCA set aside the JSC finding. Xulu said he was confident that Hlophe would not be impeached.
Submissions Xulu made in anticipation of the outcome by the JSC stated: “A reasonable impression exists that this round of requests for the Judge President’s suspension by the JSC is instigated by such extraneous interferences and therefore amounts to victimisation.
“It is not being pursued in the interest of judicial independence, the public’s confidence in the judiciary and the integrity of the judicial office. It is done to embarrass and harass while unduly elevating private interests involved in a concerted campaign for his removal. It, with respect, therefore constitutes an abuse of power by the JSC.”
Freedom Under Law’s Judge Johann Kriegler, who has been calling for Hlophe’s suspension since the JSC’s referral to Parliament, said: “While we are gratified that the JSC has ultimately taken the decision for which we have argued for years, it is always sad when a judge – especially a senior judge – hits the front page in an unfavourable context.
“Though this is a significant step, it is only a step, and Judge Hlophe may try to delay matters, as he has done in the past. Meanwhile, an impeachment process will possibly follow in the National Assembly.”
Said Xulu: “If the Tribunal decision of finding him guilty is set aside, then this whole thing will be a mockery.”
Law expert Dr Paul Ngobeni said the JSC decision had very little to do with legal principles and everything to do with political manipulation and disrespect of the judiciary.
“It is now highly irregular that the same JSC, instead of awaiting the SCA judgment, has arrogated to itself the right to recommend Hlophe’s suspension by the President. Hlophe filed an application to review and set aside the JSC decision in 2021. At that time the JSC did not recommend his suspension.
“It is only when he was successful in his application for leave to appeal that the JSC sought to retaliate against him by hastily convening a meeting in which it recommended that Ramaphosa suspend Hlophe.
“This gives rise to an appearance of retaliatory animus by a body charged with defending judicial independence and that is out if kilter with our constitution…
“In addition, there is flagrant interference with the SCA pending judgment in that the JSC is now forcing JP Hlophe to consider whether to file a separate appeal dealing with the recommendation of a suspension.
“There is no explanation of why the decision was made at the time the JSC issued its earlier decision which has already been referred to Parliament.
“There are rumours that a hit list of politicians opposed to Ramaphosa’s second term is being activated – they will be criminally charged on flimsy non-existent grounds simply to neutralise them through December 2022 as part of the so called implementation of the Zondo State Capture report.
“The Western Cape High Court will be the legal battleground where most cases related to State Capture will be litigated. For that reason, removing JP Hlophe, the only JP they cannot control, seems to be their last desperate strategy,” Ngobeni said.
rafieka.williams@inl.co.za