What John Hlophe's appeal means for parliamentary impeachment processes

Western Cape judge president John Hlophe will appeal against the judgment that affirmed as lawful the Judicial Service Commission's (JSC) finding of gross misconduct against him.

Hlophe said the public was entitled to a judgment that accurately interprets the law.

But with no interim interdict in place, parliament may now press ahead with an impeachment vote. There is also the question of whether Hlophe will be suspended in the interim. In terms of the constitution, the president may only suspend a judge “on the advice” of the JSC.

Hlophe's statement on Friday came the day after a full bench of the Gauteng High Court rejected his application to set aside the gross misconduct decision of the JSC. In August the JSC referred Hlophe to parliament for possible impeachment.

Hlophe had gone to the high court challenging the JSC decision that confirmed the finding of an earlier judicial conduct tribunal. In August the JSC referred him to parliament for possible impeachment.

The gross misconduct finding related to a 2008 complaint by all the then justices of the Constitutional Court that Hlophe had sought to improperly influence the outcome of pending cases related to corruption charges against former president Jacob Zuma. 

In the statement, Hlophe's attorney Barnabas Xulu said the Western Cape judge president had carefully read the judgment and it did not “reflect the established jurisprudence on the constitutional and legal principles raised by the parties”.

The case was “important for public's confidence in the judiciary and the rule of law, and we have accordingly received instructions to take the matter on appeal”.

Hlophe’s court challenge was based on a number of grounds. They included that the relevant JSC meeting was not properly constituted and that the JSC and the Tribunal had acted outside their powers. All his grounds were rejected by the high court.

When Hlophe initially went to court in September last year, he had asked for an interim interdict to prevent his impeachment and possible suspension, pending a review.

He withdrew his interim interdict application when the parties agreed to an expedited process to hear his main review and after an affidavit from former JSC secretary Sello Chiloane, which said the JSC had decided by majority to postpone a meeting to advise the president about suspending Hlophe pending the litigation.

“It does not intend to do so until this application is decided. This must not be understood to include appeals, however,” said Chiloane, adding that the JSC reserved its rights to “take appropriate action” once a judgment had been delivered by the high court.

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