It’s a start, not the end, say Hlophe’s lawyers as they vow to fight his removal by parliament

Suspended Western Cape judge president John Hlophe’s lawyers have vowed to fight his proposed removal from judicial office by parliament.

Attorney Barnabas Xulu, on behalf of Hlophe, told TimesLIVE Premium on Wednesday they were preparing for a new legal battle because they feel the politicians approached the matter with a predetermined outcome in mind.

Xulu accused the justice portfolio committee of running the process politically, as if  it were an ANC conference.

He said he will meet Hlophe on Saturday to finalise the legal strategy for their next course of action.

His comments came hours after parliament’s justice portfolio committee recommended that the National Assembly remove Hlophe and retired Gauteng judge Nkola Motata for gross misconduct.

“You can see the abuse of power when the politicians are involved. That’s the only time you can complete a cycle of an abuse of power, the moment politicians get involved.

“That’s why their interference is avoided in all judicial matters at all costs.”

Xulu claimed the politicians on the committee have shown their hand. 

“It’s the start (for a new battle), for the first time we see their hand directly.”

He said they were pursuing the matter as a bloc, that there was no fair and open debate where they would ask each other, “is it really worth it to interfere with a pending process in another arm of the state?”

They dealt with it like they were dealing with the 2017 ANC conference. These are politicians who basically evolved from that conference ... It was riddled with all sorts of irregularities, but they carried on and endorsed it.

—  Attorney Barnabas Xulu

The committee had taken a political decision and not a parliamentary decision that is supposed to uphold the law and the interests of justice, he claimed.

“They dealt with it like they were dealing with the 2017 ANC conference. These are politicians who basically evolved from that conference. That’s how they dealt with this. It was riddled with all sorts of irregularities, but they carried on and endorsed it.

“It was not even a kangaroo court, it was a charade. There is no other way of describing it.”

Xulu’s gripe was with the committee concluding the matter while Hlophe was still appealing to the Supreme Court of Appeal.

“Courts are seized with matters. There is a principle of separation of powers, and you ignore them and say, ‘no, we are going to vote like a bloc, depending on which political party we are coming from, we are in a majority, we suppress all the other views.’

“How many of these decisions have they been taking since they’ve been in charge of this administration. This is the way politicians work, not in the interests of the people, or fairness, or processes or respecting the rule of law.”

“They went there with a predetermined outcome. That’s how they handle the matters of this nature,” he said.

Parliament legal advisers have previously said there was no legal impediment for parliament to go ahead, that the appeal was not a legal barrier to parliament proceeding.

Hlophe is reviewing the decision of the JSC which decided, by a majority vote, that he was guilty of gross misconduct after a 2008 complaint by all the then justices of the Constitutional Court.

Committee chairperson Bulelani Magwanishe said the committee did what it thought was right in terms of section 177 of the constitution, and people who believe proper procedures were not followed can take the committee to court. “That is why we have checks and balances in our law.”

The section 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 supportive 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.