High court ‘essentially’ amended the constitution: judge Hlophe comes out firing

The Gauteng high court had “essentially” amended the constitution when it found the Judicial Service Commission (JSC) had been properly constituted to decide that Western Cape judge president John Hlophe was guilty of gross misconduct, Hlophe says in court papers.

The Western Cape judge president last week filed his application for leave to appeal against the Gauteng high court full bench decision that found nothing amiss about the JSC’s decision to find Hlophe guilty of gross misconduct — clearing the way for an impeachment process by parliament.

The finding related to a 2008 complaint, by all the then-justices of the Constitutional Court, that Hlophe had sought to influence the outcome of cases then pending before their court that related to corruption charges against former president Jacob Zuma. In August last year, the JSC by majority found Hlophe guilty and referred its finding to parliament. Hlophe went to court to challenge the decision.

In his application for leave to appeal, Hlophe said the high court had misdirected itself and made material errors of law and fact in its judgment. One of the grounds on which Hlophe had initially challenged the JSC’s decision was that the relevant JSC meeting — where the gross misconduct decision was taken — was not properly constituted, as neither SCA president Mandisa Maya nor her deputy Xola Petse was there. Nor was chief justice Mogoeng Mogoeng, nor deputy chief justice Raymond Zondo.

The composition of the JSC is specifically set out in the constitution, which says the JSC includes the chief justice and president of the SCA. If they are temporarily unable to serve, their deputies act as their alternates, it says.

Pragmatism is not a basis for upholding an unlawful conduct of a constitutional body. It cannot be a justification for deviating from the law.

—  Judge president John Hlophe

At the JSC’s August meeting both Maya and Petse had recused themselves because of their personal relationship with Hlophe and SCA justice Boissie Mbha stood in. Justice Sisi Khampepe had been sworn in as acting deputy chief justice for the day.

The high court judgment gave these arrangements the nod, saying Khampepe had been properly appointed deputy chief justice, and that Mbha’s standing in for the SCA leaders was in line with the correct approach to constitutional interpretation. His standing in would avoid the absurd situation in which the JSC would be “paralysed”, said the court.

But Hlophe said this was an “impermissible deviation” from earlier court judgments and the constitution: “The failure of the constitutionally designated leaders of the judiciary to attend, whatever their (un)/articulated reasons, does not confer on justice Mbha or justice Khampepe a constitutional status they did not have,” said Hlophe’s application.

The application also rejected what it said was the court’s suggestion that “context and pragmatism entails a departure from constitutionalism and the rule of law”. The application was here referring to where the judgment said that to interpret the constitution in a way that would exclude Mbha would lead to an absurd situation in which a judge whose integrity is impugned is forever immunised.

Hlophe’s application said: “Pragmatism is not a basis for upholding an unlawful conduct of a constitutional body. It cannot be a justification for deviating from the law. It gives an impression of a court that wanted to uphold the unlawful JSC findings at all costs, even because of pragmatism.”

By embarking on a new approach to interpreting the constitution to avoid paralysis, the high court had failed to appreciate its own role, said the application. This gave rise to “a credible inference of a court intent on protecting unlawful proceedings for a purpose unrelated to the constitution itself”, said the application.    

It had, in violation of the separation of powers, “essentially performed a legislative role by undertaking a constitutional amendment”, said Hlophe’s application. It also said the high court had not considered whether there were justifiable reasons for the non-attendance of Mogoeng and Zondo.

Hlophe has also challenged the high court’s reasoning on whether the JSC properly came to the conclusion that there was gross misconduct on Hlophe’s part.  

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