Western Cape judge president John Hlophe looks to the Helen Zille playbook

In the seemingly endless saga of the gross misconduct complaint against Western Cape judge president John Hlophe, it is sometimes forgotten that in 2009 the Judicial Service Commission (JSC) had in fact cleared him of the gross misconduct he now stands to be impeached for.

But Helen Zille, then premier of the Western Cape, challenged the JSC's decision, and won. The JSC had to start from scratch. Twelve years later it found that Hlophe was guilty. Now, in 2021, Hlophe is relying on the judgment obtained by Zille to challenge the JSC's guilty finding.

Hlophe urgently went to court this week. He asked the court to interdict his possible suspension by President Cyril Ramaphosa and to stay the impending impeachment process against him by parliament, pending his challenge of the JSC's finding.

Hlophe was found guilty of gross misconduct in August for a complaint made in 2008 by all the then justices of the Constitutional Court. They said he had sought to influence the outcome of cases, then pending before their court, relating to corruption charges against former president Jacob Zuma.

In April, a Judicial Conduct Tribunal found him guilty and the decision was confirmed by a majority of the JSC in August. Hlophe has brought his challenge to this majority decision on a number of grounds. One is that the JSC's August 25 meeting was not lawfully constituted.

This was exactly how Zille successfully overthrew the JSC's decision to clear him in 2009. She argued then that the JSC had not been properly constituted because she, the premier, was in terms of the constitution entitled to be on the JSC when it made its decision, and she was not. The Supreme Court of Appeal (SCA) agreed.

The constitution lists specific office bearers who make up the JSC; these include the chief justice and the president of the SCA. If a matter concerns a division of the high court, then the relevant premier and judge president are also members of the JSC. In his application, Hlophe said the chief justice and the deputy chief justice were not at the meeting that found him guilty. The president of the SCA was not there, nor was her deputy.

Constitutional Court justice Sisi Khampepe and SCA judge Boissie Mbha were present. However, said Hlophe, "to my knowledge, justice Mbha . was not entitled to act as the alternate of the president of the Supreme Court of Appeal".

The JSC allows for "alternates" for some of the office bearers set out in the constitution. But it says if the chief justice or president of the SCA are "temporarily unable to serve on the commission", then "the deputy chief justice or the deputy president of the Supreme Court of Appeal, as the case may be, acts as his or her alternate".

Said Hlophe: "The distinction in the drafting of the constitutional provisions must have been deliberate."

He said at the time of the meeting, Khampepe was not the chief justice or deputy and "therefore lacked the status . as required in section 178(8) of the constitution". According to a statement from the office of the chief justice, Khampepe had stopped acting as deputy chief justice from June 30.

The JSC v Zille judgment was built upon by another SCA judgment, which said that, just like with the premier, the JSC would not be properly constituted if the chief justice or deputy was not there. Likewise with the president of the SCA or deputy.

Responding to an argument from the JSC, judge Fritz Brand said he accepted that the meeting could proceed if "both the chief justice and his deputy are unavailable - in the sense that they are unable to attend".

But he said this was "an invocation of the principles expressed by the maxim lex non cogit ad impossibilia". This is a principle that the law does not require the impossible.

This means the reasons for the non-attendance of chief justice Mogoeng Mogoeng, deputy chief justice Raymond Zondo, SCA president Mandisa Maya or her deputy Xola Petse may be important.

But the bar seems set very high and Hlophe may argue, for example, that being on long leave, as Mogoeng was, would be insufficient as a reason on its own.

Hlophe said it is unclear whether Mbha was standing in for Maya and whether he was entitled to act as alternate.

The JSC may yet have very good answers to this aspect of Hlophe's case. Its being properly constituted is something it has in past meetings been acutely aware of - given the previous judgments.

Hlophe said he was "advised" that commissioners raised concerns at the August 25 meeting, which nonetheless proceeded.