Holding judges accountable for their conduct can preserve public confidence in the judiciary.
This was the sentiment from a number of MPs who participated in the parliamentary debate before the National Assembly resolved to remove judges John Hlophe and Nkola Motata.
Western Cape judge president John Hlophe became the first judge in the history of South Africa to be impeached while in judicial office.
A whopping 305 MPs voted for Hlophe to be removed, while 296 supported of Motata’s removal.
Both judges were found guilty of gross misconduct by the Judicial Services Commission (JSC).
“This process, which is defined in the constitution, is an exercise in accountability,” said ANC MP Xola Nqola about Hlophe. “It is about ensuring that the rule of law is respected by even those who wield power. It is about ensuring that people have faith in the judiciary. The judiciary cannot exist without the trust and confidence of the people. Judges must, therefore, be held accountable to legal and ethical standards.”
Nqola said a fundamental aspect of judicial independence is impartiality, which is the idea that judges should interpret and apply the law with minds open to argument and free of bias.
When hearing a matter, a judge should not have already decided the outcome before he hears each side.
“This principle is placed under threat if judges take their own personal allegiances, whether they be political, religious, ethnic, or arising from some other source, into account when adjudicating a matter.”
Nqola said Hlophe, like other judicial officers, took the judicial oath of office — swearing or solemnly affirming to uphold and protect the constitution.
“Regrettably, the conduct of judge president Hlophe fell below the standard required of someone in a position like his. People who assume the office of judge must work assiduously to manifest good character by demonstrating integrity in the detail of their life and their work,” he said.
Nqola noted that when Hlophe was invited by parliament’s justice portfolio committee to place any extenuating circumstances that he considered relevant to the committee’s deliberations on his removal from office, the arguments he raised were not convincing.
According to the DA’s Glynnis Breytenbach, Hlophe’s impeachment, or that of any other judge, has profound implications for judicial integrity in South Africa.
“It underscores the importance of upholding the highest ethical standards among judicial officers. It also sends a clear message that no-one, regardless of their position or influence, is above the law.
“Moreover, it reaffirms the principle of judicial independence as a cornerstone of democracy and boldly underlines the principle of the rule of law.”
Breytenbach said the debate on the removal of the two judges highlighted the need for robust mechanisms to address allegations of judicial misconduct promptly and effectively.
“It also emphasises the importance of transparency and accountability in the judiciary. Furthermore, it underscores the role of public trust and confidence in the legitimacy of judicial institutions.”
Hlophe had it all going for him — exceptionally well-educated, clearly very intelligent, with all the makings of a stellar judicial career, he was tripped up by the lack of that most essential component of any judge — integrity.
“Hlophe has demonstrated, amply, that he possesses no shred of integrity,” said Breytenbach.
She said Hlophe’s impeachment represented a critical moment in SA’s legal history and symbolised the country’s commitment to upholding the rule of law and preserving the integrity of its judiciary.
“It is imperative to learn from this experience and strengthen the mechanisms for safeguarding judicial integrity in South Africa.”
Both Hlophe and Motata’s matters have dragged on for about 15 years, first in the JSC and in courts before they were referred to parliament.
The EFF objected to Hlophe’s impeachment, claiming the process was not about justice or misconduct.
Its MP Busisiwe Mkhwebane — herself impeached by the same parliament five months ago as public protector — charged that Hlophe’s impeachment was not about justice or misconduct but that the house was approving a racist process.
She said Hlophe’s impeachment was “in the main about whites flexing their power over their puppets now in government, to punish Hlophe and to send a warning to all other black judges”.
Hlophe, a distinguished judge and an exceptional legal scholar, was a victim of a toxic and unforgiving culture of impaling black people who stand up against the dominant liberal and racist discourse in the country, and which she said was more pronounced in the Western Cape, said Mkhwebane.
“Today, the party of liberation will vote with the party of racists to impeach a person with an outstanding record as a judge and a scholar, simply to appease the racists still dominating in the Western Cape, including those in the bench who have never warmed to the idea of being led by a black person.”
The UDM's Nqabayomzi Kwankwa begged to differ, saying parliament cannot be expected to sit back and not act just because culprits are black.
“The step we are undertaking today confirms once more that no-one is above the law,” he said.
Section 177 of the constitution provides for a judge to be removed from office only if the JSC finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct.
The National Assembly would then call for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members and the president has to remove the judge from office upon adoption of a resolution calling for that judge to be removed, it says.
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