Hlophe seeks full state funding for impeachment challenges

Western Cape judge president John Hlophe continues his protracted battle against possible impeachment, contending the state is constitutionally bound to pay his legal costs.

Hlophe told the Johannesburg high court he requires funding to continue his legal challenges and the state is legally obliged to provide those funds, including the bill for printing a decade-long court record at a cost of R600,000.

Background

In 2021, the Judicial Service Commission (JSC) found Hlophe guilty of gross misconduct for allegedly trying to influence the Constitutional Court in a matter involving former president Jacob Zuma. The JSC’s findings are now with parliament, which must vote on whether to impeach him. However, parliament has indicated it is awaiting the outcome of Hlophe’s court challenges.

In 2022, president Cyril Ramaphosa suspended Hlophe from his duties, pending the outcome in parliament.

Hlophe’s two legal battles relate to the 2021 JSC decision and Ramaphosa’s decision to suspend him.

JSC decision

Hlophe took the JSC’s decision to recommend his impeachment on review, arguing it hadn’t properly considered the facts and that members of the JSC were conflicted. In May, the full bench of the Johannesburg high court dismissed his challenge, though it granted him leave to appeal to the SCA.

After lodging his appeal, Hlophe missed the deadline to file the necessary papers.

“My appeal in the SCA has lapsed,” he said in recent court papers, “because I cannot afford to pay for a record. The cost of the record is over R600,000.”

Suspension in 2022

In a case yet to be heard by the Johannesburg high court, Hlophe is challenging Ramaphosa’s decision to suspend him. The state is opposing.

As part of the case, Hlophe has raised the argument that “the state be held legally responsible for my legal representation” in all his impeachment challenges.

Freedom Under Law (FUL) argued in June that there “no legal foundation” for Hlophe’s claim and that his argument is “an attempt to write a blank cheque for himself to continue to litigate ad infinitum”. The NGO notes Hlophe’s decision to bring court challenges is his right, but that the question is whether the State should “bankroll” him

In late July Hlophe responded to FUL, noting that it did not oppose other judges being funded when they were engaged in legal challenges. He also argues that by funding judges’ legal challenges, the state “avoid[s] economic manipulation of judges.”

Footing the bill 

Hlophe notes that his legal fees relating to his initial challenge to the JSC decision was entirely paid for by the state, which was an acknowledgment of its duty to do so.

Speaking about his appeal in the SCA, he said neither “the Solicitor-General, the Chief Justice [nor] the [Justice] Minister ... assisted” when the state stopped funding him, “with the consequence that I was unable to proceed with my appeal in accordance with the rules.”

The matter of Ramaphosa’s suspension and state’s obligation to fund is still to be heard by the Johannesburg high court. The justice minister hasn’t yet filed a response.

moosat@busineslive.co.za