The high court has rejected Western Cape judge president John Hlophe’s bid to set aside gross misconduct findings against him, saying the judge president’s particularly narrow interpretation of the constitution would leave the Judicial Service Commission (JSC) paralysed to “ensure his own immunity”.
The judgment clears the way for an impeachment process in parliament. Also, the JSC had postponed a meeting about advising President Cyril Ramaphosa to suspend Hlophe but specifically said its position could change once the high court had made its decision.
Hlophe had gone to the high court challenging the JSC decision that found him guilty of gross misconduct, confirming the finding of an earlier judicial conduct tribunal. In August the JSC referred him to parliament for possible impeachment.
Its 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.
Hlophe’s court challenge was based on a number of grounds, including that the relevant JSC meeting was not properly constituted because Supreme Court of Appeal president Mandisa Maya was not there and neither was her deputy, Xola Petse. The two had recused themselves because of their personal relationships with Hlophe and appeal court justice Boissie Mbha had stood in.
Hlophe had argued the delegation to Mbha was unlawful. His argument was based on the wording of the constitution, which sets out specific role players who comprise the JSC, including the chief justice and the president of the SCA. In the case of the chief justice and the SCA president, their alternates are specifically stated in the constitution to be their deputies. The constitution is silent on what happens if both are not there. Complicating matters in this case was that, without Mbha, the JSC would have been inquorate and no decision could have been taken.
The judges looked at earlier judgments dealing with the JSC and said a JSC meeting without the SCA president or deputy would only be invalid if there was no good reason for their absence.
But a full bench of the Pretoria high court — acting judge president Aubrey Ledwaba, deputy judge president Roland Sutherland and judge Margie Victor — said on a proper interpretation of the constitution, Mbha could form part of the JSC in the absence of Petse.
The judges looked at earlier judgments dealing with the JSC and said a JSC meeting without the SCA president or deputy would only be invalid if there was no good reason for their absence. “In this case, we are furnished with reasonable and adequate justifications for the absences of Maya P and Petse DP.”
They said they did not lightly ignore the constitution’s JSC composition requirements, but these needed to be read within the broader scheme of the constitution and by looking at the purpose of the JSC. “There is a series of interlocking provisions designed to protect judicial independence and to protect the judiciary from internal and external threats,” said the judgment. To read the constitution restrictively would stifle the intention behind the broader constitutional scheme.
“If we conclude that Mbha JA was not entitled to form part of the JSC, then we arrive at an absurd situation in which ... Hlophe JP would forever be immunised.” But the rules of interpretation required interpretations that led away from absurdity, not towards it, said the court.
On the other hand, Hlophe’s narrow interpretation would allow him “to shut down the entire JSC”.
“The JSC process is not a game of chess poised at checkmate stage. Such a perspective would constitute both an abuse of court process and monumental waste of judicial resources,” said the court.
The judges also rejected Hlophe’s other grounds of review. They said the JSC and the judicial conduct tribunal did not exceed their powers in the way they dealt with the gross misconduct complaint but acted “as they were lawfully required to do”.
They rejected the argument that Hlophe was unaware of the rule that judges from outside a court did not discuss pending judgments with the judge involved, unless invited. “It is not open to a judge in private conversation to blurt out his preferences, biases or opinions to a fellow judge who, to his knowledge, is preparing a judgment on those very issues ... Every ethical judge would expect the same restraint from other colleagues.”
In an affidavit in September, former JSC secretary Sello Chiloane said Ramaphosa could only suspend Hlophe “under the advice of the JSC”, but the commission had not given any such advice.
“It will not do so until this application is heard and judgment is delivered,” said Chiloane, referring to the high court challenge. He 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.
* This article has been amended since its initial publication to reflect that an appeal process would not necessarily halt an impeachment process in parliament.
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