Western Cape Judge President John Hlophe. Picture: Bongiwe Mchunu/Independent Media
Western Cape Judge President John Hlophe has been given until November 15 to make written representation to Parliament on why he should not be impeached as a judge.
The justice and correctional services portfolio committee took the decision on Tuesday, after it received a briefing from the parliamentary legal services on issues that Judge Hlophe had raised in a letter to the committee.
In the letter, Judge Hlophe’s legal representative, Barnabas Xulu, said the 2021 Judicial Services Commission (JSC) decision of gross misconduct against the judge was still subject to a court challenge on appeal.
“While the high court dismissed the review application, it nevertheless granted leave to appeal to the Supreme Court of Appeal (SCA),” he said.
Xulu said Judge Hlophe’s appeal had not yet been heard by the SCA.
“The law must be allowed to take its course to an appeal process which was granted by the high court.”
According to Xulu, the delay in the SCA appeal was due to the Department of Justice ceasing to cover his legal costs without notice.
He noted that the parties involved in litigation against Judge Hlophe were all funded by either the State or private donors.
“The JSC/State has even failed to cover the costs of the court record which is required to be placed before the SCA. The SCA cannot attend to the appeal without the record of the court below,” he said.
Xulu added that there was further pending litigation in the Gauteng High Court over the issue of legal funding regarding court cases involving Judge Hlophe.
In his letter, Judge Hlophe raised issues previously dealt with by the JSC and the courts, including the (alleged) irrational behaviour of the JSC as indicative of undue influence.
Xulu said Judge Hlophe would welcome a parliamentary inquiry into the serious issues highlighted in his letter concerning public statements made to unduly influence the workings of the JSC and frustrate the administration of justice.
“Such an inquiry would be in the public interest,” he said.
Briefing the committee, parliamentary legal adviser Barbara Loots told MPs that Judge Hlophe had filed an appeal against the judgment of the high court, and that the JSC decision was not set aside.
“There is no interdict against Parliament not to continue with its process,” Loots said.
She also said the dispute between Judge Hlophe and the State Attorney was not a matter that concerned the portfolio committee.
Loots added that issues raised by Judge Hlophe, such as undue influence, political motive allegations and irrational behaviour, were raised in litigation without success.
“The high court already indicated that the JCT (Judicial Conduct Tribunal) and Judicial Service Commission acted rationally in the exercise of its duties.”
During a discussion, the committee unanimously agreed to grant Judge Hlophe until November 15 to make representation just as it had given an extension to retired Judge Nkola Motata. It also agreed not to open the impeachment process to public participation.
ANC MP Qubudile Dyantyi said he was concerned about the delays, but indicated Parliament was not to blame.
“We need to get this done. Both judges had plenty of time to send extenuating circumstances,” Dyantyi said.
DA MP Glynnis Breytenbach echoed Dyantyi’s sentiments and stated that there was no need to open the process to further public participation.
“All the members (of Parliament) represent the public. That is our job to consider, politically speaking, whether Judge Hlophe should be impeached.
We can’t abdicate that responsibility,” Breytenbach said.
Committee chairperson Bulelani Magwanishe said with November 15 a deadline for Judge Hlophe to make written representation, the committee would meet to deliberate on November 22 on how to take the process forward.
“We are now to consider extenuating circumstances, deliberate and take the matter to the House. It is envisaged that the House must take the decision,” Magwanishe said.
Cape Times