The Judicial Service Commission (JSC) this week forwarded to parliament its written decision that Western Cape judge president John Hlophe is guilty of gross misconduct. It is a historic moment in SA's post-apartheid history - the first time a judge has been referred for possible impeachment.
The gross misconduct finding related to a 2008 complaint, unprecedented and utterly shocking at the time, by all of the then-justices of the Constitutional Court. They complained to the JSC that Hlophe had sought to influence the outcome of cases pending before their court that were connected to corruption charges against former president Jacob Zuma.
At the time, Zuma was president of the ANC and it was widely believed that the judgment in these cases was critical to his chances of becoming president of the country.
Though the complaint was swiftly made, its final resolution proved elusive. It took 13 years, with much intervening litigation and other delays, before a Judicial Conduct Tribunal finally decided that Hlophe had improperly sought to influence two of the highest court's justices - Bess Nkabinde and Chris Jafta - to violate their oath of office.
On Wednesday the JSC voted to uphold the tribunal's gross misconduct finding. On Thursday the JSC publicly released the majority decision of the JSC and the dissenting report of the minority, both of which were sent to parliament.
During the week, the Sunday Times established from three independent sources that a majority of eight commissioners voted to support a finding of gross misconduct, as per the majority decision, and only four voted in support of the minority.
The commission had first met in June to consider the tribunal's report, but could not "finalise the matter", said the official statement. It is understood that commissioners were unable to reach consensus and it was decided that some members would write an opinion in favour of finding Hlophe guilty while others would write against this; and the two draft decisions would be circulated to assist the commissioners in deciding how to vote.
Voting was by secret ballot on Wednesday. The drafters of the majority decision and the minority report are not named. However, the Sunday Times has reliably learnt that the majority decision was written by Gauteng judge president Dunstan Mlambo, Jenny Cane SC, Wits University professor Engela Schlemmer and attorney Ettienne Barnard.
The minority decision was penned by Dali Mpofu SC, Griffits Madonsela SC, chair of the Legal Practice Council Kathleen Matolo- Dlepu and attorney Lutendo Sigogo, who passed away before the vote.
The majority found that Hlophe's conduct fell short of the high standards expected of South African judges
The majority found that Hlophe's conduct fell short of the high standards expected of South African judges, and agreed with the assessment of the evidence and conclusions reached by the Judicial Conduct Tribunal.
The minority differed strongly, agreeing with Hlophe's argument that Jafta and Nkabinde had, from the start, sought to distance themselves from the language of the ConCourt justices who said there was an "improper attempt to influence".
The majority and minority decisions also differed sharply on whether Hlophe knew that judges should not approach other judges to talk about pending cases they were not involved in.
Under the constitution, parliament must now take up the reins of an impeachment, which would require a two-thirds majority.
Unlike with the public protector and the president, there is no need for a lengthy quasi-judicial process by parliament as this has all happened already under the JSC.
However, Hlophe may yet challenge the JSC's decision in court as his attorney Barnabas Xulu previously hinted he would do in a statement after the tribunal's decision. Intervening litigation is one of the hallmarks of this saga, although much of it not at Hlophe's instance.
On Thursday, Xulu said the judge president and his team would still have to study the reasons before deciding.
On Friday, he did not respond to a request for comment.
The immediate question is whether, in the meantime, Hlophe will be suspended by the president. The constitution says the president "may" suspend a judge who is the subject of an impeachment process "on the advice of the JSC".
This means the president must first receive advice from the commission, but lawyers agree that the word "may" gives the president some degree of discretion. The JSC has invited everyone involved to make submissions on the suspension issue - giving them until next Friday to do so.
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