Impeachment process against Hlophe and Motata gets under way

Parliament will run a parallel impeachment process for Western Cape judge president John Hlophe and retired judge Nkola Motata.

Section 177 of the constitution provides for a judge to be removed from office only if the Judicial Service Commission (JSC) finds the justice suffers from an incapacity, is grossly incompetent or guilty of gross misconduct.

The National Assembly would then call for that judge to be removed by a resolution with a supporting vote of at least two-thirds of its members required. Thereafter, the president will remove the justice from office upon adoption of a resolution by parliament calling for it.

On Wednesday, in an unprecedented development, the portfolio committee on justice started the process by adopting a framework to be followed. The committee will invite the JSC to a briefing on the procedure and the recommendations for impeachment.

It will then ask Hlophe and Motata to make written submissions on “extenuating circumstances” they would like parliament to consider before concluding the matter.

The briefing will be a procedural presentation because one of the National Assembly’s constitutional responsibilities in the process is to ensure that in each step there is procedural compliance by the JSC, committee chair Bulelani Magwanishe said.

Parliamentary legal adviser Barbara Loots said parliament has a limited role in the impeachment of judges and cannot reconsider the merits of matters finalised by the JSC and court judgments.

“We are recommending that the committee must formally note the finding of the JSC as a legal fact,” Loots said.

The JSC’s finding is a jurisdictional precondition to the National Assembly resolution and the assembly has been called on to make a political decision, one that has to be taken after the committee and house have applied their minds and deliberated on the matter, she said.

The JSC found Hlophe guilty of misconduct, saying he attempted to influence, improperly, Constitutional Court judges Bess Nkabinde and Chris Jafta to decide matters then before the top court in favour of certain litigants.

The commission referred the matter to parliament in August 2021, but the legislature put it in abeyance the next month when Hlophe approached the Gauteng high court seeking an interdict to stay the then impending impeachment process and his suspension by President Cyril Ramaphosa.

Earlier in September, the National Assembly’s programming committee decided the impeachment process should resume as Hlophe’s time for appeal had lapsed earlier in 2023.

The events leading to Motata facing a vote of impeachment date back to January 2007 when he crashed his Jaguar into the wall of a Hurlingham, Johannesburg, home, then made racist comments to the homeowner. He was later convicted of driving under the influence. 

The Judicial Conduct Tribunal recommended to the JSC in 2018 that Motata be removed from the bench for gross misconduct. However, the JSC refused to accept the recommendation, deciding Motata’s actions at the time of the crash amounted to misconduct rather than gross misconduct, and did not warrant his removal from the judiciary. Instead, it fined him R1.1m. 

But in 2020, Freedom Under Law (FUL) began proceedings before the Johannesburg high court to have the JSC’s decision reviewed and set aside, and to substitute that decision with a finding that Motata was guilty of gross misconduct.

The high court dismissed the application in 2022, prompting FUL to apply for leave to appeal to the Supreme Court of Appeal (SCA). Motata did not participate in the proceedings in the SCA or high court.

In June, the SCA upheld the FUL’s appeal and ordered the matter be remitted to the JSC for it to be dealt with in terms of section 20(4) of the JSC Act. 

That section provides that if the JSC finds a judge grossly incompetent or guilty of gross misconduct, it must submit that finding with reasons for it and a copy of the report, including any relevant tribunal material, to the speaker of the National Assembly. This is what chief justice Raymond Zondo did last month. 

Though Motata retired in 2017 after being on special leave from January 2007, he was allowed to retain all benefits, including a salary for life. If he is impeached, however, these will be withdrawn.

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