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The Judicial Service Commission has recommended impeachment for Western Cape judge president John Hlophe. Picture: TREVOR SAMSON
The Judicial Service Commission has recommended impeachment for Western Cape judge president John Hlophe. Picture: TREVOR SAMSON

A substantial majority of the Judicial Service Commission (JSC) voted to uphold a gross misconduct finding against Western Cape judge president John Hlophe, paving the way for an impeachment process by parliament.

This will be the first time in SA’s post-1994 history the JSC has referred a judge to parliament for possible impeachment.

Eight members of the JSC voted to find Hlophe guilty while only four voted against, Business Day’s sister news website, TimesLIVE, understands.

The finding of gross misconduct earlier in 2021 by a judicial conduct tribunal related to a 2008 complaint by all the then justices of the Constitutional Court. The justices complained that the Western Cape judge president had sought to influence the outcome of a pending judgment relating to corruption charges against former president Jacob Zuma.

Zuma is currently on trial for the same charges.

At the time, he was president of the ANC and the Constitutional Court judgment was widely viewed as crucial to his prospects of becoming president of SA.

The JSC said it would be furnishing parliament with copies of its majority and minority views. It has also asked those who participated at the tribunal for written submissions on whether it should recommend to President Cyril Ramaphosa that Hlophe be suspended, pending an impeachment decision by parliament.

After years of litigation, the 13-year complaint was finally heard by the tribunal in 2020. It found that Hlophe had improperly sought to influence two of the highest court’s justices — Bess Nkabinde and Chris Jafta — to violate their oaths of office.

Its report reads that during two separate visits to the Constitutional Court, Hlophe had, uninvited, raised the Zuma cases and said that the Supreme Court of Appeal’s (SCA) judgment was wrong; there was no case against Zuma; and Zuma was being persecuted just as he, Hlophe, had been persecuted.

To Nkabinde, he “bragged” about his political connections and said that people were going to lose their jobs once Zuma became president, according to the tribunal.

To Jafta, after saying the SCA had got it wrong, he said the now infamous words sesithembele kinina. According to a witness at the tribunal, the words could mean variously “we put our confidence in you”, “we have faith in you”, “we put our trust in you”, “we trust in you”, “we rely upon [or on] you”, or “we are pinning our hope on you”.

The tribunal’s three-person panel chaired by retired judge Joop Labuschagne said the “irresistible” inference was that there was an attempt to influence.

The panel also emphatically rejected Hlophe’s argument that there was nothing wrong with judges talking to each other about pending cases.

Merits of the case

It was acceptable as long as the judges were discussing legal principles and not the facts of the case, Hlophe argued.

The panel said it was “trite” that judges may not discuss the merits of a case with the judge who heard it while judgment is pending, unless discussion was initiated by the judge writing.

“That principle is deeply rooted in the legal profession. It is instilled through years of practice, either as an advocate or as an attorney, from whose ranks most judges are drawn.”

A judge for 13 years by then, Hlophe was “expected to have been aware of it, and on balance, he was”.