History was made this week when, for the first time, two judges were impeached for misconduct.
The National Assembly adopted the portfolio committee on justice and correctional services’ reports recommending the removal from judicial office of suspended Western Cape Judge President John Hlophe and retired judge Nkola Motata.
A total of 305 members voted for the removal of Hlophe from judicial office and 27 members voted against his removal. On the removal of Motata, 296 members voted for his removal from office, one was against, and 13 members were recorded as having abstained.
The Judicial Service Commission (JSC) found Hlophe guilty of attempting to influence two justices of the Constitutional Court to violate their oaths of office. This related to a case dating back to 2008 when Hlophe was accused of attempting to influence the court’s judgment in the Thint/Zuma matters.
The case involved former president Jacob Zuma.
Motata was found guilty of gross misconduct following a drunk driving conviction in 2009.
The JSC Act provides for oversight of judicial conduct and the accountability of judicial officers and sets out the process that must be followed when a complaint is laid against a judicial officer.
The Judicial Conduct Tribunal (JCT) found in August 2021 that Hlophe’s conduct breached the provisions of section 165 of the Constitution. Additionally, the tribunal found that his conduct threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court and that it threatened public confidence in the judicial system.
The JSC, having considered the JCT’s report, the record, and submissions from the parties, by a majority decision, decided to uphold the JCT’s decision that Hlophe was guilty of gross misconduct.
On the matter regarding Motata, the JCT found him guilty of gross misconduct and recommended that the JSC invoke a section of the Constitution, which provides that a judge may only be removed from office if the JSC finds that the judge suffers from an incapacity, is grossly incompetent, or is guilty of gross misconduct.
The portfolio committee on justice and correctional services, by majority, on Wednesday recommended that both Hlophe and Motata be removed from judicial office.
The resolution on the removal of the two judges will now be communicated to the president.
According to the transparency project Judges Matter, the president has to set a date for both judges to officially lose their status and title as judges, and all the benefits that come with that position.
Freedom Under Law, meanwhile, welcomed the decisions, which came years after complaints were levelled against them.
Hlophe was the subject of a complaint by 11 judges of the Constitutional Court, dating back to 2008. He had since fought tooth and nail not to be impeached.
The conduct tribunal was finally convened in 2018, and in 2021 the tribunal recommended that Hlophe be removed from office.
In 2022, the JSC finally endorsed this finding and referred the matter to Parliament. Hlophe’s attempt to review the JSC’s decision was dismissed.
He was also unsuccessful in further applications in a desperate bid to prevent his impeachment. He asked the Western Cape High Court to stop Parliament from proceeding, until the Constitutional Court application was resolved.
In the Constitutional Court application, Hlophe argued that Parliament did not have the appropriate procedures or rules in place to guarantee a fair or lawful removal process as per the Constitution. He also argued that a vote to remove him from office would be a gross infringement on the principle of separation of powers and judicial independence.
On the morning of the vote, Judge Sulet Potterill struck Hlophe’s urgent application off the court roll.
Motata was convicted of driving a vehicle while under the influence of intoxicating liquor in an incident dating back to 2007. In 2010, his appeal against the conviction was dismissed. Two complaints were lodged against him relating to the use of racist language at the scene of the accident, and advancing a defence which he knew to be untrue.
In 2018, after a lengthy delay, caused in part by Motata challenging the JSC process, a judicial conduct tribunal upheld the complaints and recommended his removal from office. The JSC overruled this finding and concluded that the standard of gross misconduct was not reached.
Last year this decision was overturned in litigation brought by Freedom Under Law.
It said the outcome of the National Assembly vote was a sad moment for the judiciary, because it marked the first time in South Africa’s history that judges would be removed from office for misconduct.
“This represents a crucial step in ensuring judicial accountability given the nature of the misconduct committed by both judges. It is vital to protect the integrity of the judiciary, and for public confidence in our judges, that there are serious and meaningful sanctions imposed on judges who commit serious acts of misconduct.”
Freedom Under Law said while the process, in respect of both judges, had taken far longer than it should have and had highlighted many problematic aspects with the process of holding judges accountable, the final outcome was to be welcomed.
Pretoria News
zelda.venter@inl.co.za