JSC to advise suspension for Hlophe

The Judicial Service Commission (JSC) will advise President Cyril Ramaphosa to suspend Western Cape judge president John Hlophe, it decided at a meeting on Monday night. 

In terms of the constitution, it will then be up to Ramaphosa to decide whether to suspend Hlophe.

The JSC’s decision was a majority one, spokesperson advocate Sesi Baloyi confirmed.

In August last year, the JSC decided, also by majority, that Hlophe was guilty of gross misconduct and to refer him to parliament for possible impeachment. The finding related to a 2008 complaint by all the then justices of the Constitutional Court that Hlophe had sought improperly to influence the outcome of cases then pending before the court related to corruption charges against former president Jacob Zuma.

The JSC’s decision followed a judicial conduct tribunal in 2020 which unanimously found that Hlophe had sought to influence two justices of the Constitutional Court to breach their oath of office.

Hlophe has challenged the JSC’s misconduct decision in court. He lost in the high court in May, but it granted him leave to appeal to the Supreme Court of Appeal. While the case was before the high court, the JSC said it would not meet to decide on advising the president on suspension, but it specifically said it would make no further undertaking once the high court had given judgment.

The constitution allows the president to suspend a judge only “on the advice of” the JSC and if the judge is the subject of the two-stage removal process set out in the constitution — a finding by the JSC of gross misconduct, incapacity or gross incompetence and a call for their removal by parliament supported by a two-thirds resolution.  

Hlophe’s referral to parliament by the JSC was the first time in post 1994 SA that a judge has been referred for possible impeachment.

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