Freedom Under Law seeks to oppose Hlophe's bid to stop impeachment

The purpose of the relief that judge John Hlophe seeks from the Constitutional Court — to halt parliament's impeachment process — creates a system where procedural technicalities can shield misconduct for years. 

This is one of the submissions made by Freedom under Law (FUL), which has applied to be admitted as an intervening party in Hlophe’s application before the apex court.

FUL intends to oppose Hlophe's application, made last month, in which he asked the Constitutional Court to set aside the November decision of parliament’s justice committee to recommend to the National Assembly that he be removed from judicial office.

Hlophe also wants the highest court to direct parliament to adopt rules for the impeachment of judges.   

In an affidavit filed on Wednesday, FUL's executive officer Judith February said it was clear Hlophe sought extraordinary and far-reaching relief. She said FUL's specific grounds for opposition to Hlophe’s application will be set out in answering papers that it intends filing upon being granted leave to intervene in the main application. 

She said the purpose and effect of the relief Hlophe sought was to forestall judicial accountability. It also aimed to upend the constitutionally mandated structures for investigations of complaints, findings of gross misconduct and removal. 

“Moreover, it creates a system where judicial accountability becomes unduly burdensome or, conversely, where procedural technicalities can shield misconduct for years, at state expense and contrary to the dictates of the constitution. 

“These outcomes would seriously imperil, rather than promote, the rule of law and judicial independence.” 

February said the introduction of unprecedented procedural requirements for the impeachment of judges could complicate and potentially compromise the process designed to hold judges accountable, thereby affecting not just the involved judges but the South African public at large. 

“Moreover, the introduction of more complex procedural mechanisms in the impeachment process could delay the resolution of cases concerning judicial misconduct.”

She said such delays not only impeded the swift administration of justice, but also contributed to a lack of trust in the legal system.

February said the parliamentary rules that Hlophe argued for were inappropriate. 

She said in the context of judges, unlike the removal proceedings for a president or public protector, a full trial and fact-finding enquiry concerning allegations of gross misconduct have already been conducted by the Judicial Service Commission, as required under the constitution and the law. 

February said the JSC’s thorough investigation and conclusion meant that the essence of procedural detail, which the impeachment rules ostensibly aimed to address, had been fulfilled by the JSC. 

“Indeed, it is impermissible for parliament to second-guess that process. The findings of gross misconduct are indeed a final conclusion.”

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