The constitution draws a clear distinction between the role of parliament and the role of the Judicial Service Commission when it comes to removing a judge, with parliament’s decision being a political one, said legal advice to parliament’s portfolio committee on Wednesday.
Parliament is moving towards an impeachment vote for both retired judge Nkola Motata and suspended judge president John Hlophe. On Wednesday its justice portfolio committee adopted a set of steps to impeach a judge.
The impeachment of a judge is unprecedented. “It will be for the first time since 1910,” said chair of the committee, Bulelani Magwanishe. These steps will guide judicial impeachment processes in parliament, he said.
The five steps adopted by the justice committee followed a briefing from parliamentary legal services and included a memorandum from chief parliamentary legal adviser Zureya Adhikarie, which looked at the constitutional requirements for removing a judge and advised on what steps should be followed by parliament as a result.
The memorandum said while the JSC made a decision on whether a judge committed gross misconduct, “the remedy determination” — or what consequence the judge should face — was the job of parliament to determine. It referred to a high court judgment which said that parliament “should not do a rehearing of the complaint (that is a question ... already settled at the JSC finding stage)”.
The judgment also said the National Assembly made a political decision. Parliament’s legal advisers then advised five steps, which were adopted by the committee.
The first step was for the committee to formally note the finding of gross misconduct by the JSC. This was formally done on Wednesday — in respect of both Hlophe and Motata.
The office of a judge is a very respectable office. So, must be those who hold it. A judge’s conduct, in and out of court, should not dishonour that high office. Impeccable moral and ethical standing is a crucial hallmark of such public office.
— Judicial conduct tribunal
The second step was to seek a “procedural” briefing from an official of the JSC. The briefing would not be on the merits of the finding of gross misconduct, but about the process followed by the JSC. “Members must be cautioned that it is not their mandate to engage on the merits considered during any stage of the JSC process,” said the memo.
The committee wasted no time, deciding at Wednesday’s meeting it would write to the JSC for presentations in respect of Motata and Hlophe.
The third step — based on the advice of senior counsel — was that the judge concerned must be afforded an opportunity to make representations before the National Assembly about possible extenuating circumstances or any other relevant information — but it must be relevant to “remedy” and not the merits of guilt or innocence.
Dr Barbara Loots, who was briefing the committee on behalf of parliament’s legal advisers, said this would be similar to when someone addresses a court in mitigation of sentence after they have been found guilty of a crime. While it would not change the guilty finding, it could persuade MPs to lessen the penalty.
The memo said this step was “legally required to ensure that a decision is procedurally rational and lawful”. Loots told committee members that a rational process by parliament meant there must be “a considered decision” and one in which MPs applied their minds and then voted in terms of the principles set out for this democratic realm.
“Then I think that parliament will be performing its duties,” she said.
Step four would be for the committee to deliberate on whether it wants to recommend — “as a political decision”, said the written legal advice — the removal of the judge. Step five would be a report by the committee to the National Assembly. Step six would be for parliament to consider the report and take a vote.
Motata was cleared of gross misconduct by the JSC despite a finding that he had committed gross misconduct by a judicial conduct tribunal. However, the JSC’s decision was set aside by the Supreme Court of Appeal in June. The judicial conduct tribunal’s guilty finding was in respect of two complaints: one for racist utterances he made at the scene of his car crash in 2007, when he — under the influence of alcohol — drove his car into the wall of a Hurlingham home.
The other was that, during the course of his criminal trial, he relied on a defence that he knew to be untrue — a breach of judicial ethics. The tribunal said in its 2018 report that he had acted in a way “incompatible with or unbecoming of the holding of judicial office”.
“The office of a judge is a very respectable office. So must be those who hold it. A judge’s conduct, in and out of court, should not dishonour that high office. Impeccable moral and ethical standing is a crucial hallmark of such public office,” said the tribunal.
After the SCA decision, the JSC referred Motata to parliament for possible impeachment.
Hlophe’s gross misconduct finding related to a 2008 complaint made by all the then justices of the Constitutional Court, that the judge president had sought to influence the outcome of a judgment, then pending before their court, connected to corruption charges against former president Jacob Zuma. The judicial conduct tribunal found that he had improperly sought to influence two of the highest court’s justices, Bess Nkabinde and Chris Jafta, to violate their oaths of office. In August 2021, a majority of the JSC endorsed this recommendation, saying his conduct was not in line with the high standards the public could expect of SA’s judges.
However, since then Hlophe has been litigating on the finding of the JSC, the JCT and on his suspension by the president. Parliament had decided to put its impeachment process on ice until the litigation was resolved. It was only earlier this month that parliament’s programming committee put the impeachment process back on the agenda, after its legal advisers said there was no legal impediment to proceeding.
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