Western Cape judge president John Hlophe is expected to preside at public protector Busisiwe Mkhwebane’s legal challenge to the rules governing her impeachment process.
The case will begin one court day after the Judicial Service Commission (JSC) meets to consider whether Hlophe is guilty of gross misconduct and should face impeachment.
Hlophe’s registrar, Lizette Potgieter, told the Sunday Times that the judges who had been allocated to the Mkhwebane case were Hlophe, Elizabeth Baartman and Mokgoatji Dolamo.
Judiciary spokesperson Nathi Mncube confirmed this, saying “you may go with what she confirmed with you”. The case is set for June 7 to June 11.
On the Friday before that, June 4, the JSC is scheduled to decide whether Hlophe should face impeachment proceedings in parliament, after a Judicial Conduct Tribunal found him guilty of gross misconduct.
The tribunal said that in 2008 he attempted to influence a Constitutional Court judgment in favour of Jacob Zuma. At the time Zuma was president of the ANC and the judgment, connected to corruption charges against him, was widely believed to be critical to his chances of becoming president of the country.
But according to the constitution and the JSC Act, the tribunal’s finding must be confirmed by the JSC before it can be referred to parliament. The JSC said in April that Hlophe could not, in law, be suspended until the JSC decides if he is guilty of gross misconduct.
Allocations of who will preside in which cases are the responsibilty of the judge president.
Mbekezeli Benjamin, of judicial advocacy group Judges Matter, said the Superior Courts Act gives judges president discretion in allocating cases and, while there was a practice of judges president allocating “politically sensitive” cases to themselves, “in the circumstances of this case, it would have been preferable for the JP to allocate another senior judge”. “The concern is that if the JSC ... comes out with a decision to suspend JP Hlophe, or uphold the tribunal’s guilty finding, it would be disruptive to the hearing of the PP case [and] it might even have to be postponed.” Benjamin said even with two other judges sitting with Hlophe, the risk would not be averted. “Those two judges could [as in another Western Cape High Court case last year] come to two different conclusions in the case and it would have to be restarted.”
Freedom Under Law’s (FUL’s) Nicole Fritz said Hlophe’s presiding in this case was “very concerning”. That he would allocate to himself “such a manifestly politically charged case, the very next working day after the [JSC] meeting, certainly suggests that he assumes there will not be any conclusive decisions taken against him,” she said.
Last month JSC spokesperson Dali Mpofu SC said the JSC was treating the Hlophe tribunal’s findings like any other. If the JSC’s past processes are anything to go by, the meeting on June 4 is unlikely to produce a decision immediately. With two previous tribunal decisions — the decision on judge Nkola Motata and the decision on judges Ferdi Preller, Ntsikelelo Poswa and Moses Mavundla — there were several meetings of the JSC before a decision was announced. In Motata’s case, it took the JSC a year and a half before it decided not to confirm the decision of the JCT.
In the Poswa, Preller and Mavundla complaint, the tribunal’s decision was not released although its hearing finished in December 2018. The decision on the judges’ dilatoriness came only this year in January.
Benjamin said that if the JSC did not make its decision on Hlophe on June 4, there would not be a risk of the public protector case being set aside. The JSC’s guilty finding, if it goes that way, “will not have the retrospective effect of invalidating whatever decision JP Hlophe takes,” he said.However, Fritz said Hlophe’s decision to preside strengthened FUL’s case for the JSC to recommend that the judge president be suspended and that this decision be taken at the meeting on June 4, “irrespective of whether any other decision is taken”.
The judicial tradition that the leader of a court tends to preside in big, politically sensitive cases is not one that Hlophe has generally followed. He did not sit in the fight over the signal jamming in parliament, or about a secret ballot for a vote of no confidence in Zuma. He did not sit on an urgent challenge to one of Zuma’s cabinet reshuffles, nor the Earthlife Africa case that challenged the nuclear deal. He did not sit in challenges to lockdown regulations.
He did, however, sit in the criminal trial of former state security minister Bongani Bongo, whom he found not guilty of corruption. The NPA said it would appeal the verdict. Mkhwebane is challenging the constitutionality of parliament’s new impeachment rules that were recently developed and are to be used for the first time in the impeachment process against her by parliament.
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