Johannesburg - Western Cape Judge President John Hlophe’s legal team have argued that the Judicial Services Commission (JSC) was trying to “abuse” and “scandalise” him before the courts by alleging he brought this case for self-serving reasons.
His advocate, Thabani Masuku, said it was a serious allegation and their remarks had serious implications on how the courts viewed Hlophe.
“(Hlophe) served as a judge president for over 20 years … and is aware of the weighted responsibility of a judge president.
“Their allegations seek to scandalise the judge president …. and is abusive to the judge president,” Masuku said.
The virtual sitting of a full bench of the North Gauteng High Court in Johannesburg is hearing arguments this week on the merits of the JSC’s endorsement of a finding of the tribunal that concluded that Hlophe was guilty of gross judicial misconduct.
Hlophe was recommended for impeachment processes by Parliament after he was found guilty of improperly trying to influence the decision of two Constitutional Court justices to favour former President Jacob Zuma in the arms deal case.
Hlophe is challenging the 13-year-long process.
Representing the JSC, advocate Tembeka Ngcukaitobi this week said the commission arrived at the decision following a “learned and thorough exposition of the facts and law by the tribunal”.
Ngcukaitobi disputed Hlophe’s argument that the composition of the JSC sitting that decided his fate was unconstitutional and argued that after 13 years, “it is now time for this matter to be put to bed.”
“The JSC fulfilled its functions and decided that Judge Hlophe’s conduct is impeachable. The matter must now go to the politicians. They must decide whether or not Judge Hlophe must be removed,” Ngcukaitobi said.
He told the bench that Hlophe was found guilty of violating Section 165 of the Constitution and by dragging this case on, had actually interfered with the independence of the courts and “eroded” public confidence in the system of adjudication.
“I want to stress that there is no greater threat to judicial independence than an internal threat. If the judiciary is eroded, it is extremely difficult to police. It can be corrosive,” Ngcukaitobi said.
Ngcukaitobi further argued against Hlophe’s suggestion that the JSC was not properly constituted by saying that Acting Chief Justice Raymond Zondo, Supreme Court of Appeal President Mandisa Maya and her deputy, Xola Petse, all had “good reasons” not to participate in the vote, because they regarded themselves as conflicted.
Hlophe’s legal team argued that four of the JSC members who voted for him to face impeachment were not properly appointed making the composition of the body unconstitutional.
He was referring to then-acting Deputy Chief Justice Sisi Khampepe, Appeal Court Judge Boissie Mbha, Gauteng Judge President Dunstan Mlambo and Western Cape Premier Alan Winde.
Ngcukaitobi said this argument was “absurd” and that it was Hlophe who manufactured this state of paralysis.
Masuku has been arguing that the JSC acted unconstitutionally when it voted in favour of him being found guilty of impeachable gross misconduct and further said that the JSC failed to apply the correct law when it determined whether the report of the Judicial Conduct Tribunal should be admitted.
Hlophe has also sought relief by asking the courts to order Parliament to try him as well and not just “rubber stamp” the JSC’s decision. Masuku says the JSC did not have the final word on whether he committed gross judicial misconduct.
Political Bureau