MPs will be politicians, not lawyers, in deciding fate of judges

It took less than an hour for parliament’s justice portfolio committee to decide on the impeachment process for judges and to get it under way for retired Gauteng high court judge Nkola Motata and suspended Western Cape judge president John Hlophe.

Given that more than 15 years have passed since complaints against the two judges were first lodged and that the impeachment of a judge is unprecedented, this was remarkably quick. The committee had earlier been given written legal advice on the constitutional aspects of removing judges.

The advice made a distinction between the roles of the Judicial Service Commission (JSC) and parliament: the JSC decides if a judge committed gross misconduct, whereas parliament’s job is “the remedy determination” — or what consequence the judge should face. Parliament “should not do a rehearing of the complaint (that is a question ... already settled at the JSC finding stage)”.

Finally, parliament’s decision is a political one, said the advice. There were objections to this, with DA MPs and Glynnis Breytenbach balking at the idea that “purely political” considerations could lead parliament to vote against impeachment when the JSC had found impeachable conduct. ANC MP Qubudile Dyantyi said parliament, by its nature, played a political role: “We are elected there as members. The other extreme is to say [parliament’s] role is just to rubber stamp what’s there. And I would not agree.”

We are elected there as members. The other extreme is to say [our] role is just to rubber stamp what’s there. And I would not agree

—  Qubudile Dyantyi

Barbara Loots, briefing the committee on behalf of parliament’s legal advisers, said it was the Gauteng high court that spoke of a political decision. “The JSC is vested with the power to make a decision based on the norms of judicial ethics. The National Assembly makes a political decision,” said the court in May last year. The judgment emphasised that disciplinary matters are decided by the “small JSC” — the JSC minus its MP members.

The distinction is an important one for the process the committee adopted. The quasi-judicial part is complete and not to be revisited. Parliament’s role is not to be an arbiter of a quasi-judicial process based on judicial ethics. Nor is the process adversarial.

This is perhaps why the committee was advised to receive submissions from the affected judge on “extenuating circumstances” — akin to pleading in mitigation of sentence, said Loots. However, unlike in a court, the committee did not need to receive submissions in aggravation. On Thursday, committee chair Bulelani Magwanishe told the Sunday Times the committee would receive submissions only from the affected judge.

However, a political process does not mean a parliament has a free hand. It must still act rationally in law, though the bar for this would be set low. Loots said she agreed parliament should not just rubber stamp. There must be “a considered decision”, she said, and one in which MPs applied their minds and then voted “in terms of the principles set out for this democratic realm”.

That discussion over, the committee continued briskly apace. It was clear that it meant business.

This was in stark contrast to what came before, in the JSC phase, where nearly every step of the process went at a snail’s pace and was dogged by litigation. 

In 2007 Motata crashed into the wall of a Hurlingham house and, under the influence of alcohol, said, among other things: “No boer is going to undermine me … this used to be a white man’s land, even if they have more land … South Africa belongs to us. We are ruling South Africa.” 

The incident and his subsequent behaviour at his criminal trial led to a criminal conviction for driving under the influence and three separate complaints to the JSC — in 2007, 2008 and 2011.

The complaint against Hlophe was made in 2008, when all the then judges of the Constitutional Court complained that he had, on separate visits to two of their number, sought to sway the court in favour of former president Jacob Zuma in a pending judgment related to corruption charges. 

In both Hlophe and Motata’s cases, resolution of the complaints was delayed by litigation — Hlophe is still litigating. But notable in both cases was that at a certain point the JSC cleared them of impeachable conduct.

In 2008 the JSC, by a narrow majority, rejected the recommendation of a judicial conduct tribunal that had found Motata guilty of gross misconduct. The JSC found misconduct, but not gross misconduct. The judge was therefore not impeachable.

In a scathing judgment this year, the Supreme Court of Appeal set this aside. It said the JSC Act required the JSC to “consider” the tribunal’s report. While the JSC was not bound by the report, it was “not entitled to simply disregard the tribunal’s factual findings in the manner that it did”.

For Hlophe, the JSC decided against sending the complaint to be investigated by a formal inquiry, which would have included cross examination. It instead decided that a subcommittee would hear evidence from relevant parties — with no cross-examination. The subcommittee in 2009 cleared Hlophe on the basis that it could not reject his version — an outcome that was then approved by a majority of the JSC.

The SCA said in 2011 this was irrational because by disallowing cross-examination that result was inevitable. “It would have been highly irregular to reject [Hlophe’s] evidence without having given him an opportunity to cross-examine his accusers ... The procedure adopted was therefore not appropriate for the final determination of the complaint.” 

The first-of-its-kind committee process may yet be tested by litigation, by Hlophe, Motata or another judge in the future. Litigation on the JSC phase so far has shown that, in the performance of its own constitutional responsibility, the JSC too must act rationally and within the law. 

Though neither judgment said so, perhaps the lesson is that members of the JSC should act less like politicians and leave that to parliament.