Impeached Western Cape Judge President John Hlophe has suggested that the Constitutional Court should appoint several acting judges to ensure his latest legal challenge is heard.

Because of the duration of the saga and the involvement of so many legal practitioners over the years, the majority of the Constitutional Court’s judges may be conflicted by their involvement in previous matters relating to the original misconduct complaint against him.

This is the latest development in a 16-year saga that has seen a barrage of court cases mushroom from a complaint lodged against Hlophe by the Constitutional Court in 2008.

In February, Hlophe and Judge Nkola Motata became the first judges to be impeached in democratic South Africa, after a parliamentary vote in favour of their removal. This was followed by a letter from President Cyril Ramaphosa on 6 March confirming that Hlophe had been removed from office.

His latest case at the Constitutional Court is his last opportunity to undo his removal, by challenging the process used by Parliament.

Hlophe’s battle is one of high stakes and millions of rands. His impeachment and subsequent removal as a judge means he will no longer have access to judicial benefits, which include a salary for life.

Judges do not receive ordinary pensions when they retire but are paid salaries for life, meaning the state can call on them to do work such as the chairing of commissions or supporting courts when needed. Hlophe’s impeachment means he won’t have these benefits and will have to rely on whatever funds he has already accumulated.

Because of the litany of court cases that followed the original complaint against Hlophe, the majority of the 10 judges currently sitting at the Constitutional Court have been involved in matters relating to him. The result is what Hlophe refers to as a “constitutional disability”, which could see seven of the justices having to recuse themselves, leaving the court without a quorum.

If the judges were to all recuse themselves, this would be a first in South African legal history and indicative of the latticed nature of the Hlophe saga.

The court is not unaware of the problem that might arise and on 28 March, Chief Justice Raymond Zondo asked all parties in the case to give input on how it could proceed. Zondo explained that one of the judges had been accused of “enmity” towards Hlophe, although the details of the allegation were not explained further.

Zondo himself could be called on to recuse himself, as he is the chairperson of the Judicial Service Commission (JSC), the body which recommended Hlophe be removed as a judge and the sixth respondent in this case. Zondo also noted that other judges had either adjudicated cases relating to Hlophe or appeared as counsel for justices Chris Jafta and Bess Nkabinde in the disciplinary process before the JSC.

One judge “attempted to mediate the dispute between justices of the court”, while Hlophe had a “prior personal friendship” with another Constitutional Court judge.

“If all seven justices were to recuse themselves, the court would not have a quorum to adjudicate the application before it,” Zondo noted.

He asked the parties to give input on whether the grounds were sufficient for recusal, whether the case fell within the exclusive jurisdiction of the court, and whether the “doctrine of necessity would allow the court to hear the case regardless of the recusal issue”.

Solutions 

Hlophe argued that if all seven judges were to recuse themselves, the result would be “constitutional paralysis”. He has motivated for an alternative solution: appointing several acting judges. Hlophe also argued that because of the nature of the case, the Constitutional Court has exclusive jurisdiction and must hear the matter.

Section 175 (1) of the Constitution empowers the President to appoint an acting judge to the court if another judge is absent, based on the recommendation of the justice minister and the agreement of the Chief Justice.

“To resolve the constitutional disability triggered by the conduct of justices who rendered this court unable to exercise its exclusive jurisdiction, the Constitution gives the President, in terms of section 175 of the Constitution, the power to appoint acting judges,” Hlophe said in written submissions to the court.

“The recusal of the justices would result, it is submitted, in their being ‘absent’ from the matter, and would result in section 175(1) being brought into operation.”

Recusal grounds

Hlophe argued that the Constitutional Court is the only court that can resolve the issue and must hear his case, due to the doctrine of necessity. He argued that the court hadn’t given sufficient information about some of the potential conflicts.

“First,” he argued, “the alleged reasons are stated in a conclusory fashion, lacking in detail and are totally insufficient to inform the parties of the grounds for the recusal. For instance, it is alleged that the judges’ ‘reasons are different but relate to some of the following’ and then it is stated that there are ‘allegations of enmity between one justice and the applicant’ but the underlying justice in question is not specifically identified. Nor are there sufficient factual allegations to support the basis for the alleged enmity between the said justice and the applicant.”

Hlophe added that the case could affect the judiciary as a whole, as he was challenging the procedure taken by Parliament to impeach him.

“If the constitutionality of this process by the National Assembly is not addressed, judges in South Africa may be removed from office without any parliamentary oversight in relation to the JSC’s adjudication of a complaint of gross misconduct.

“A judge may be removed from office without any due process involving the right to be heard on all aspects of the JSC findings. In other words, a judge may have evidence that the JSC members were unduly influenced by extraneous factors including bribery in reaching a finding of gross misconduct against him, but the parliamentary process will not permit him or her the right to be heard on that issue because it does not relate to sanction,” he argued.

Challenge to parliamentary process

Hlophe approached the court in December, requesting it to set aside the resolution adopted by the Parliamentary Committee on Justice and Correctional Services in November to have him removed from office. Hlophe took issue with the procedure followed by Parliament, saying Parliament should “adopt rules for the removal of judges” in terms of section 177(1)(b) of the Constitution.

These rules should include:

• The holding of a proper inquiry into whether the JSC’s process was lawful;
• Allowing the judge legal representation at the state’s expense;
• The appointment of an evidence leader; and
• The right for the judge to make written and oral submissions.

Hlophe argued that the steps taken by the National Assembly to impeach him were “unlawful, unconstitutional and invalid” and should be set aside by the court.

Parliament has defended its process, saying the Constitution does not require Parliament to hold a separate inquiry after the JSC process.

“Once that finding is made, the National Assembly’s role is narrow: it must make a decision on whether that finding by the JSC warrants the removal of a judge. Hlophe JP argues that the National Assembly should simply note the finding of the JSC and run its own parallel process into whether a judge is guilty of gross misconduct. The Constitution does not countenance such an interpretation,” the secretary to the National Assembly, Masibulele Xaso, argued.

He added that the relief sought by Hlophe, “subverts the carefully designed constitutional balance” created by the makeup of the JSC. The body is comprised of lawyers, judges and members of the National Assembly.

“Hlophe JP’s approach disregards these constitutional guardrails and seeks to conflate the process into almost an appeal/review function, whereby the National Assembly exercises some sort of appellate jurisdiction to override the JSC’s finding. Such an approach would negate the pivotal role played by the JSC and ignore its constitutional importance and independence. That invitation must, with respect, be firmly rejected,” Xaso said. Parliament has called for the case to be dismissed.

On the recusal question, Parliament is of the view that at least four of the 10 judges would have grounds to recuse themselves from hearing the case, including Zondo.

“Whilst the Chief Justice himself is not a respondent in these proceedings, he is a member and chairperson of a party to the proceedings and thus has an interest in the outcome. The Chief Justice may have even participated in deliberations of the JSC on this matter,” Parliament said in its submission.

It also pointed out that former Chief Justice Mogoeng Mogoeng had recused himself in another case brought before the Constitutional Court by Hlophe.

“We see no reason why the same approach would not apply here.”

Another ground it sees as sufficient for recusal relates to two justices having appeared as counsel in the disciplinary process.

“A justice that appeared as counsel would not only be conflicted, but would also be placed in an invidious position of having to navigate between the confidential and privileged information that may have been disclosed to them as counsel and the impartiality required of a judge.”

But Parliament disagreed with Hlophe’s argument that several acting judges could be brought in if the arguments on recusal were accepted. Instead, it argued that the “doctrine of necessity” required the current Bench to determine whether the case fell within its exclusive jurisdiction.

“The court is not dealing with an application in which it is considering whether it may grant a hearing — this is a case in which the court is directly mandated by the Constitution to determine. No other court in this country has that right. We respectfully submit that all members of this court are duty-bound to determine this application,” Parliament said in its written submission.

Parliament added that the application should be dismissed “because it is moot and thus the court need not determine the merits”.

The Democratic Alliance has also weighed in on the issue, saying the latest application was “yet another chapter in the judiciary’s own NeverEnding Story”. It agreed with Parliament’s argument that Hlophe’s case had no merit.

The DA argued that the case could be delayed until the court became quorate, due to several justices retiring over the next two terms. It added that the Constitutional Court had no exclusive jurisdiction and could dismiss the case on that basis, but that determination would have to be made by the current Bench. DM

Hlophe timeline

May 2008 — Constitutional Court judges file a complaint with the JSC alleging Hlophe tried to influence two of the court’s judges in a case involving former president Jacob Zuma.

July 2009 — The JSC holds an initial hearing into the complaint and finds there is no prima facie evidence of gross misconduct. It decides not to hold a full inquiry.

2010 — Freedom Under Law (FUL) and Western Cape Premier Helen Zille challenge the JSC decision not to hold a full inquiry. Zille and FUL win at various levels of court

March 2012 — The Constitutional Court refers the complaint back to the JSC for adjudication.

September 2013 — A Judicial Conduct Committee begins hearing evidence in the complaint. The finalisation of this hearing is delayed by several court applications

December 2020 — A Judicial Conduct Tribunal finally hears the complaint against Hlophe.

April 2021 — The tribunal unanimously finds that Hlophe is guilty of gross misconduct. Hlophe goes to the high court to have that decision overturned but the case is dismissed.

July 2022 — The JSC recommends Hlophe’s removal from office. Its finding is referred to Parliament for a final decision. Hlophe challenges this ruling in the high court.

December 2022 — Ramaphosa suspends Hlophe from his position as Western Cape Judge President.

November 2023 — Parliament’s portfolio committee on Justice and Correctional Services recommends Hlophe’s removal from office.

December 2023 — Hlophe approaches the Constitutional Court to have the parliamentary process overturned.

21 February 2024 — The National Assembly votes to impeach Hlophe, with 305 members voting in favour and 27 against.

6 March 2024 — Ramaphosa confirms Hlophe’s removal from office.