Mapisa-Nqakula seeks advice on procedure for Hlophe vote

Parliamentary speaker Nosiviwe Mapisa-Nqakula wants clarity on legal questions linked to the impeachment of Western Cape judge president John Hlophe.

Bulelani Magwanishe, chair of the justice committee, said Mapisa-Nqakula had sought procedural guidance on the impeachment vote from the committee. He said he was waiting for a letter with details of the brief for the guidance needed.

The National Assembly faces the task of voting on whether Hlophe should be impeached, after the disciplinary body for jurists found him guilty of gross misconduct last week.

On Friday, Hlophe is expected to file reasons with the Judicial Service Commission (JSC) arguing against his suspension by the president pending the impeachment vote. The JSC will debate his submissions on September 13.

On Thursday, Mapisa-Nqakula forwarded a letter about Hlophe from the JSC — signed by acting chief justice Raymond Zondo and acting JSC chair Sisi Khampepe — to the justice committee.

Khampepe chaired the meeting last Wednesday that ended with eight JSC members agreeing Hlophe was guilty of misconduct. She took long leave from the apex court on July 28 ahead of her retirement in October but returned to lead the charged JSC meeting.

The letter she and Zondo signed recorded 11 Constitutional Court judges who filed a complaint against Hlophe with the JSC in 2008. The matter was hamstrung by a slew of legal challenges and only settled last week. Parliament must make the ultimate call on whether Hlophe must be impeached, but first the justice committee should file a report.

Mapisa-Nqakula said: “The justice portfolio committee must consider procedural aspects and submit its recommendations to the house for consideration and decision.” Asked for clarity on what constituted procedural aspects, parliament spokesperson Moloto Mothapo said they would include an assessment of the procedural fairness of the JSC process.

“There are no timelines as to when it must file its report. The house will deal with the matter once the committee submits its report,” Mothapo said.

Once members had reviewed the documents and compiled a report, the committee would report back to parliament. Next, the scheduling committee would set a date for the impeachment vote.  

Progress on deciding when the impeachment vote would occur, therefore, hinged on the efficiency of the justice committee in compiling its report. A further dilemma centres on whether the vote would be via secret ballot.

Mapisa-Nqakula has the power to decide, but members of opposition parties hope she will follow precedent set in a case about a vote of no confidence in the then-president. In 2017, the Constitutional Court ruled the speaker had the power to decide on a secret or open ballot but must take certain factors into account.

They included whether the format would enable members to act according to their conscience in the public interest, impartiality by the speaker, the risk of skulduggery in the event of a secret ballot, and guaranteeing a rational purpose for the vote.

While that judgment concerned a vote of no confidence in a head of state, it may offer a model for the first impeachment vote against a judge. For that to prevail, two-thirds of the 400 members of the National Assembly must support the JSC’s view.

As yet, there was no clarity on when the impeachment vote would occur and, depending on what other matters were before the justice committee, the JSC letter could have landed in an inbox already packed with things to do.

Correction: September 2 2021
The first version of this report incorrectly said Mapisa-Nqakula had written to Deputy President David Mabuza seeking clarity on legal questions linked to Hlophe's impeachment. She, in fact, sought clarity from the justice committee. In a separate matter she wrote to Mabuza in his capacity as the head of government regarding laws on executive members answering written questions. Business Day regrets the error.

batese@businesslive.co.za