Suspended Western Cape judge president John Hlophe has misconceived parliament’s role in impeaching judges, according to court papers lodged on behalf of the speaker of parliament on Friday.
The court papers were responding to Hlophe’s urgent application to the Western Cape High Court this week asking it to interdict the National Assembly from voting on his impeachment, scheduled for Wednesday. Hlophe’s application is set down to be heard on Tuesday.
But Hlophe’s legal argument “contorts the carefully designed constitutional balance”, said Zuraya Adhikarie, chief legal adviser to parliament. In the DA’s court papers, Glynnis Breytenbach put it more bluntly, saying it was “hopeless” and “an absolute constitutional non-starter”.
Hlophe faces impeachment for a 2008 complaint made by all the then-justices of the Constitutional Court that he tried to influence the outcome of pending cases before their court connected to corruption charges against Jacob Zuma. In 2021 the Judicial Service Commission (JSC) found him guilty of gross misconduct, saying he had attempted to improperly influence two of the apex court’s members — “in favour of particular litigants”.
Hlophe’s high court application asks that the impeachment vote be put on ice pending the outcome of an application he made to the Constitutional Court late last month — to set aside the justice portfolio committee’s process and its decision to recommend impeachment to the National Assembly.
There is zero chance the Constitutional Court will uphold the underlying basis for the relief the applicant seeks before that court and this court
— Glynnis Breytenbach
His case at the Constitutional Court argues that the committee acted unconstitutionally by merely “rubber-stamping” the JSC’s decision. Parliament’s duty was to relook at the merits of the JSC decision, which he says was unfair and wrong. It must adopt rules for a process to impeach a judge, he said.
But he did not apply for an interdict from the Constitutional Court and he did not make his application on an urgent basis. The apex court is yet to even issue directions. Parliament said that, unless it was interdicted, it would press ahead.
Hlophe then turned to the high court, saying the speaker had previously adopted a “reasonable position” when he had litigated, which was to await the outcome of the litigation. Her approach was now “different” even though his Constitutional Court application made “meritorious constitutional complaints”.
There was no urgency in holding an impeachment vote — “and a delay until the outcome of the Constitutional Court and other litigation is not onerous given the history of this matter”, said Hlophe.
But Adhikarie said the heart of Hlophe’s application to the Constitutional Court was the argument that the National Assembly must “effectively conduct a second-level rehearing into the same issues” or “duplicate the process that has already been conducted (extensively, over many years, and at great cost) by the JSC”.
“These contentions are misplaced,” she said. It was not what was envisaged by the constitution.
Breytenbach agreed. The text of the constitution “could not be clearer”: the role of the JSC was to determine whether a judge was guilty of gross misconduct, she said. The role of the National Assembly “is to decide whether, based on the JSC’s findings, the judge should be removed from office”. This was the view of a full bench of the high court, which rejected Hlophe’s rubber-stamping argument, she said.
When it came to judges, the constitution did not allocate the role of fact-finding to parliament, she said. The wording when it came to judges was different to the wording when it came to the public protector, which assigns to a parliamentary committee the task of fact-finding.
“There is zero chance the Constitutional Court will uphold the underlying basis for the relief the applicant seeks before that court and this court,” said Breytenbach.
Hlophe’s approach “seeks to conflate the [parliamentary] process into almost an appeal/review function, whereby the National Assembly exercises some sort of appellate jurisdiction to override the JSC’s finding. Such an approach would negate the pivotal role played by the JSC and ignore its constitutional importance and independence,” said Adhikarie.
She rejected Hlophe’s assertions that parliament should have waited while his litigation was pending and set out the 16-year history of the matter in bullet-point form — it took more than 11 pages to do so. She said as far back as 2017, the Constitutional Court had said it was in the interests of justice for the complaint against Hlophe to be brought to finality. The constitution itself demanded it.
Freedom Under Law (FUL), which has also sought to intervene in the court case, emphasised this aspect, saying if the interdict was granted, it would lead to an erosion of public trust “in the impartiality and probity of the judicial branch, already battered by years of uncertainty and lack of accountability in judge Hlophe’s case”.
Hlophe had, since 2008, been “attempting to sidestep accountability”.
“The aim of the urgent application is clear: it represents a strategic and somewhat convenient attempt to postpone the impeachment vote,” said Judith February, executive officer of FUL.
The Hlophe saga has now become better known for the way it has dragged on than for the original issue.
The aim of the urgent application is clear: it represents a strategic and somewhat convenient attempt to postpone the impeachment vote
— Judith February, executive officer of FUL
The cases Hlophe was found to have tried to influence related to corruption charges faced by Zuma — at the time the president of the ANC, soon to be president of the republic. They concerned search and seizure warrants obtained by the National Prosecuting Authority relevant to the prosecution of Zuma and French arms company Thint (now Thales).
At the time, it was widely believed the Constitutional Court’s decision would determine whether Zuma would be able to move into the Union Buildings.
In that heightened political context, Hlophe made two visits to the Constitutional Court: one to acting justice Chris Jafta and another to justice Bess Nkabinde. Summing up the evidence, the Judicial Conduct Tribunal described his meeting with Nkabinde in April 2008 thus: “He mentioned to her that there were concerns [that people appointed to the Constitutional Court] should understand the history of the country. He further said that he had a list from intelligence of people who had been involved in the arms deal and that people were going to lose their jobs after Mr Zuma became president of the country.”
Nkabinde asked him who was raising concerns about appointments to the Constitutional Court. “In response, judge president Hlophe said that certain ministers, whom he advised from time to time, had raised such concerns,” said the tribunal’s decision.
The tribunal said Hlophe then raised with her the Zuma-Thint matters and expressed strong views on the issue of legal professional privilege — a legal question at the heart of the cases. Nkabinde “cautioned him that as a non-member of the court he was not entitled to discuss the Zuma-Thint matters, but [he] went on to explain that ‘the point is that there is no case against Mr Zuma’.”
Hlophe maintained at the tribunal that his visits to the two judges were innocent and that his remarks were just passing comments he made when he saw the Zuma-Thint files stacked up in their chambers. The legal issues involved were ones he felt strongly about. He denied the remarks about intelligence and ministers.
Hlophe said the Zuma-Thint cases came to the Constitutional Court on appeal from the Supreme Court of Appeal and he had concerns about how the SCA had dealt with legal professional privilege. Like Zuma, he had also been persecuted after his report in 2004 on racism in the judiciary ruffled feathers, he said.
But the tribunal said that in so far as Hlophe’s evidence diverged with Nkabinde, hers was preferred. Why was the discussion “so politically laden”? asked the panel. “She was told about Mr Zuma’s political ambitions and prospects, cabinet ministers concerned with judicial appointments, national intelligence, et cetera. What had all this to do with justice Nkabinde, or any judge, for that matter?”
The tribunal said the “irresistible” inference was an attempt to influence.
It also rejected Hlophe’s argument that there was nothing wrong with judges talking to each other about pending cases and that it “happens all the time”. The panel said it was “trite” that judges may not discuss the merits of a case with the judge who heard it while judgment was pending, unless the discussion is initiated by the scribe judge.
“That principle is deeply rooted in the legal profession. It is instilled through years of practice, either as an advocate or as an attorney, from whose ranks most judges are drawn.” A judge for 13 years by then, Hlophe was “expected to have been aware of it and, on balance, he was”.
The JSC, by majority, agreed with the decision of the tribunal and referred Hlophe to parliament. Its justice committee decided last year decided it was not its place to relook at whether Hlophe was guilty. That was the JSC’s province and the decision had been made. The committee’s job, and parliament’s, was a “political” one — to vote on impeachment. This is what parliament will be debating when it votes on Wednesday. If it votes.
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