EDITORIAL | Hlophe should not be in charge of Mkhwebane’s impeachment case

If all goes according to plan, Western Cape judge president John Hlophe will be presiding over public protector Busisiwe Mkhwebane’s legal bid aimed at preventing her impeachment. Whose plan? one might ask, and that would be a very relevant question.

For let us not forget who Hlophe is: the Western Cape judge president, accused in 2008 by Constitutional Court judges of trying to sway them to hand down a judgment in favour of former president Jacob Zuma, who incidentally had his own court appearance for corruption again on Monday (which was postponed because he wants the state prosecutor to recuse himself). 

The second key player in this saga is Mkhwebane, the public protector appointed by Zuma, succeeding Thuli Madonsela, whose swansong was the “State of Capture” report that kick-started the Zondo commission of inquiry. Mkhwebane, since her appointment in October 2016, has suffered no fewer than eight courtroom defeats. The Constitutional Court last year used the words “bad faith”, “disturbing” and “misrepresenting under oath” to describe some of her conduct.

At best, it was irresponsible of him not to consider the longer-term implications if he were to be impeached. At worst, it was a sinister move.

She is now finally facing the prospect of impeachment, but in true Zuma style she is throwing the book at every part of the process, including a legal challenge to the rules governing her impeachment process.

This is where Hlophe steps into the picture. Apparently unfazed by the fact that the Judicial Service Commission (JSC) is considering his own impeachment for gross misconduct, he appointed himself – in his capacity as judge president – and two other judges, Elizabeth Baartman and Mokgoatji Dolamo, to preside over the Mkhwebane matter. 

Mkhwebane’s legal challenge has been set down for June 7-11. The JSC is scheduled to decide on June 4 whether Hlophe should face impeachment proceedings in parliament after a judicial conduct tribunal found him guilty of gross misconduct for his actions back in 2008. 

Technically, Hlophe did nothing wrong by appointing himself to the Mkhwebane case. He is still judge president. At best, it was irresponsible of him not to consider the longer-term implications if he were to be impeached. At worst, it was a sinister move. If he rules in favour of Mkhwebane and gets removed after that, his judgment stands despite the gross misconduct cloud over his head. Already his recent acquittal of security minister Bongani Bongo, who was accused of corruption, will be appealed. 

Hlophe should have appointed another senior judge instead of himself. He knows very well that if he is booted out, it will disrupt the Mkhwebane matter. Hers is a crucial case that needs to be concluded speedily, in the interest of good governance. His latest action is all the more reason for the JSC to move to suspend him on June 4.