No parliament inquiry necessary in Hlophe matter - legal opinion

09 September 2021 - 22:20
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Western Cape judge president John Hlope.
Western Cape judge president John Hlope.
Image: Supplied

Parliament has been advised against holding another inquiry into the conduct of Western Cape High Court judge president John Hlophe, as its role is limited to a check-and-balance function.

This is the legal opinion given to the National Assembly's portfolio committee on justice and correctional services, which will be processing the Judicial Services Commission's (JSC's) report into Hlophe's conduct.

In a meeting held on Thursday evening, parliament legal adviser Barbara Loots said that unlike a Section 89 or a Section 194 impeachment process, parliament does not have to look at the grounds for impeachment in the Hlophe matter as the JSC has already done that.

Section 89 deals with the removal from office of a president, while Section 194 deals with the removal of a head of a chapter 9 institution.

“With the different arms of government it’s always a check-and-balance [function] to make sure that even though we have a separation of powers, there is a balance in the exercise of responsibilities the constitution places on a certain arm of government.

“The National Assembly’s role here is therefore such a check. It’s keeping that balance in these sequential roles as set out in section 177 of the constitution. It's the JSC, the National Assembly and then the president,” said Loots.

She said this did not mean the National Assembly should simply rubber stamp the JSC's process.

“Every decision, every vote the National Assembly takes should be rational.”

There are no special rules guiding the process to be followed in the event a judge is impeached.

Loots said these were not necessary as this is not the type of situation in which parliament would be doing an inquiry.

“It’s merely a normal oversight role where there is a check function for the National Assembly to do.

“The committee in the background can determine its own process and might look at how it considers removal of magistrates, and whether it feels all the boxes were ticked, that the procedure that was followed at the JSC was fair and report back to the National Assembly on whether it felt everything was in order,” she said.

This, she said, would be to ensure the assembly is informed when it takes a vote on the matter.

Her colleague Siviwe Njikela more explicitly cautioned MPs from conducting what he said would be a parallel inquiry.

“We would want to caution that the job of the committee is not to run a parallel process that lies with somebody else. The JSC and the finding has been made.

“There must be a very careful consideration of the limits of each arm of government in as far as the issue is concerned,” said Njikela.

He said it was in terms of the constitution and the Judicial Services Commission Act, that the issue of the finding of guilt or if somebody suffers from incapacity is a matter that is exclusively within the competence of the JSC.

He stressed that the Constitutional Court had previously sought to clarify the differences in terms of how the principle of separation of power works.

“If you look at the process, it is in three steps. The JSC makes a finding, the [parliamentary] committee makes a call by vote, and the president, based on the call by parliament, does the removal,” he said.

A two-thirds majority vote is required to impeach.

Njikela added: “It is a process that is a build up. Each arm of government needs to stay within its area of responsibility. One area of responsibility has already been finished and closed, with the finding by the peers of the judge president. Parliament has to, not rubber stamp, but satisfy itself that it has all the information that is required,” said Njikela.

Section 177 of the constitution provides for a judge to be removed from office only if the JSC finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct.

The National Assembly would then call for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members and the president has to remove the judge from office upon adoption of a resolution calling for that judge to be removed, it says.

The JSC found Hlophe guilty of gross misconduct, saying he attempted to influence, improperly, Constitutional Court judges Bess Nkabinde and Chris Jafta to decide matters that were then before the Constitutional Court in favour of particular litigants.


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