JOHANNESBURG – Western Cape Judge President John Hlophe is fighting tooth and nail to hold onto his office.
His legal team this week filed an application for leave to appeal the Johannesburg High Court’s dismissal of his challenge to the Judicial Service Commission’s (JSC’s) finding of gross misconduct against him.
The case against Hlophe dates back to 2008 and relates to what the JSC in August, in confirming findings made by the Judicial Conduct Tribunal four months earlier, found was gross misconduct in the form of an attempt on his part to improperly influence then Constitutional Court justices Chris Jafta and Bess Nkabinde, during a make-or-break appeal involving former president Jacob Zuma’s prosecution over the arms deal.
The finding paved the way for a parliamentary vote on his potential impeachment, with gross misconduct one of three categories of complaints which, if established, can get a judge kicked off the bench.
It’s a complex and lengthy process and a two-thirds majority vote in Parliament is still required to seal the deal and impeach Hlophe. This is the closest any judge has ever come to impeachment in South Africa though.
Earlier this month, the High Court dismissed an application Hlophe had launched to have the JSC’s findings reviewed and set aside.
He isn’t going down without a fight, though, and is now challenging that decision.
In the papers, Hlophe’s lawyers maintained the High Court failed to consider “that judges enjoy a constitutionally guaranteed right to speech” and that “extra-judicial remarks made by a judge should be judged against the constitutional standard of the Bill of Rights and in the context of the facts in terms of which the remarks are made”.
“While accepting that judges may not violate judicial independence in their remarks both publicly and privately, it is not consistent with the constitutional standard of gross judicial misconduct to remove a judge for private remarks made to a friend, who on the evidence was uncomfortable with them, but did not consider them to mean anything in relation to his or her duty to deliver a judgement,” the papers read.
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They also pointed to the JCT’s findings on the matter and argue the High Court should have set them aside on the grounds that the tribunal “completely misconstrued its lawful purpose”.
“It saw its fundamental role as to vindicate the honour of witnesses and complainants against [Hlophe] who had not testified at the hearing or subjected to cross-examination. Its articulated purpose was at odds with [Hlophe’s] constitutional rights in Section 34 [which provides that “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum of the Constitution and demonstrative of actual bias against him],” the papers read.
His lawyers further argued that the High Court should have concluded the tribunal acted outside its statutory powers.