Parliament's justice committee recommends Hlophe, Motata removal

Parliament’s justice portfolio committee will recommend to the National Assembly to remove suspended Western Cape judge president John Hlophe and retired Gauteng judge Nkola Motata from judicial office.

Two-thirds (267) of the National Assembly’s MPs will have to vote in support of the recommendation for it to take effect, and with the ANC (230 MPs) and DA (84) in support of the call at the committee level, the judges are unlikely to escape the chop.

Only the EFF opposed the recommendation during the committee’s discussions on Wednesday.

The two judges were requested to make written submissions on "extenuating circumstances" they would like parliament to consider before concluding their matters.

In his submission, Motata raised an issue of jurisdiction and double jeopardy. His contention was that the Judicial Services Commission (JSC) had not referred the matter to the speaker of the National Assembly or the assembly itself, it just took a decision of the supreme court of appeal and sent that to the speaker.

On double jeopardy, Motata contended that the JSC found him guilty of misconduct and fined him R1.1m, which he paid. He said if parliament continues with its process, it would be jeopardy on his side.

Committee chair Bulelani Magwanishe said after receiving Motata’s submission, the committee contacted the JSC, and chief justice Raymond Zondo convened “a small JSC”, that is the JSC without members of parliament last Friday. A resolution was adopted and referred to National Assembly speaker Nosiviwe Mapisa-Nqakula, who in turn referred it to the committee.

The JSC has also undertaken to interact with Motata about the R1.1m he paid because the decision of finding him guilty of misconduct was overturned by the SCA and replaced with the verdict of gross misconduct, which led to the constitutional process before parliament.

He raised no other extenuating circumstances.

With the exception of EFF MP Busisiwe Mkhwebane, who was impeached as the public protector two months ago, all the committee’s members said the committee should recommend Motata be removed as a judge in terms of the constitution and based on the JSC report.

Mkhwebane “vehemently opposed” this, saying Motata was already disciplined by the JSC, had shown remorse by paying a fine and was already retired.

“Where is ubuntu, to just deal with Africans like this?” she asked.

She proposed that the committee should give the two judges another opportunity and hear them out.

“Why do we have to treat this matter as if we are not dealing with the livelihood of a person? We are not in support because it’s a heartless process. We should be thinking, what’s the benefit and what public interest would be impacted if this matter can be dealt with in such a way that this person has paid that fine and was punished for doing that?”

Hlophe made a 244-page submission in which he charged that the process was not ready for a decision as he was still appealing.

“We have set out in some detail … the basis upon which we respectfully contend that the 2021 JSC decision of gross misconduct is anything but ‘already proven’ and why the ‘merit issues’ relating to the ‘JSC process’ cannot be said to be ‘already settled’.

“The merit issues remain the subject of a pending judicial review appeal process, which has been hamstrung by the state’s failure to fund judge president Hlophe’s legal representation and related legal costs, including costs for the court appeal record,” said Hlophe through his lawyers.

They also urged the committee to inquire why funding for Hlophe’s appeal to the SCA was withdrawn without notice or reasons given.

“The reasons for this unilateral and inexplicable withdrawal of state funding is part and parcel of the evidence of the interference with the inquiry.”

Hlophe also contended that there was “clear evidence of political interference” in his matter, in which the DA was working with an NGO that was specifically formed to ensure his removal and which campaigned publicly and privately to achieve the contested JSC result.

“The external interference and pressure on its own would constitute extenuating circumstances of the nature that the committee should reject the JSC findings,” he said. “From our observations, it would be prudent, and while observing the audi alteram partem principle, to allow judge president Hlophe’s legal representatives to also make oral representations and to answer questions by members of [the] committee.

“Denying judge president Hlophe the right to make representations is a denial of due process and violates his rights to a fair process.”

MPs, based on legal advice, rejected Hlophe’s assertions and request for it to hear him and his lawyers, saying theirs was not to conduct an inquiry and that the written submissions made were sufficient.

They agreed to recommend to the house that he be removed.

Again, Mkhwebane objected, saying as someone who has been through a similar process, it was “very grievous and heartbreaking” to hear MPs saying the process was fair.

She took issue with the committee proceeding despite the court having granted Hlophe the right to appeal, adding he was hamstrung by the justice department not funding his appeal. She said it was unfair to expect Hlophe to pay from his own pocket, and urged the committee to intervene and appeal to the department to ensure the state takes care of Hlophe’s legal funding.

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

The National Assembly would then call for the judge to be removed by a resolution with a supporting vote required of at least two-thirds of its members.

Thereafter, the president would remove the justice from office upon adoption of a resolution by parliament calling for such.

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