As pressure builds on the JSC to act on the findings against Western Cape Judge President John Hlophe, Freedom Under Law's Johann Kriegler argues that Hlophe should not only be impeached, but he should be prosecuted and jailed for defeating the ends of justice.

Kriegler, a former justice of the Constitutional Court and past chairperson of the IEC, was speaking during a News24 webinar.

‘We are considering what to do about the non-suspension of Judge Hlophe, certainly. We are also contemplating other possible steps vis-a-vis the JSC, that I am not at liberty to disclose at this stage, but we are not sitting on our hands,’ Kriegler said.

Hlophe ‘fundamentally disagrees’ with the Judicial Conduct Tribunal's findings, which found him guilty of gross misconduct for trying to sway two Constitutional Court justices to rule in favour of then ANC president Jacob Zuma. The tribunal found that Hlophe's conduct breached the provision of section 165 of the Constitution, in that he improperly attempted to influence ‘Justices Chris Jafta and Bess Nkabinde to violate their oaths of office’.

Kriegler said there was nothing wrong with the mechanism of the JSC.

He said it was a ‘little elaborative (and) is a little over-protective of the judges’. He said the problem with it was that ‘people (were) at the control of that mechanism’.

‘It has not been pushed with the requisite political will, with the requisite sense of urgency that dealing with judges promptly serves to defend the judiciary (and) not to damage it. The way that you maintain the integrity and the public standing of the judiciary is to show to the world unashamedly… if a judge stumbles, we will deal with him promptly and appropriately.’

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Meanwhile, pressure is mounting on the JSC to delay interviewing potential judges for the Western Cape High Court until it has decided whether or not Hlophe is guilty of gross misconduct.

A Sunday Times report quoting commission spokesperson Dali Mpofu SC notes Western Cape Premier Alan Winde and the Cape Bar Council have asked the JSC to suspend Friday's interviews.

The Judicial Conduct Tribunal (JCT) decision that Hlophe was guilty of gross misconduct, delivered last Saturday, must still be confirmed by the JSC, and until it does the Judge President is entitled to take part in the interviews.

As was previously reported, the Cape Bar Council said in a statement that the JSC should not hold its interviews as scheduled but should use the day to deliberate and decide on the tribunal's report.

‘In addition, the interview process should resume only after the JSC has made its finding on the JCT's report ... Such a course will also ensure that the serious findings of the JCT do not taint the judicial appointment process to the Western Cape High Court,’ said the statement.

Mpofu confirmed that the JSC responded to Winde by requesting a meeting this (Monday) evening, and said that a decision on whether to postpone the Western Cape hearings would be communicated afterwards.

Under the Constitution, the Premier and Judge President are members of the JSC when it appoints judges to a provincial division.

A SCA judgment also says the JSC is not properly constituted without the Premier or an alternative when considering matters related to that particular court. This would leave any appointments made without Winde or his alternative present open to court challenge.

Though the tribunal's findings could lend force to a decision to impeach Hlophe, it is the decision of the JSC that matters, says the Sunday Times.

In terms of the Judicial Service Commission Act, the JSC must first solicit representations from the relevant parties.

The reports says it is understood the JSC had planned to meet on 4 June to consider the tribunal's findings, and has asked for submissions in the meantime. Early last week, Mpofu said the commission was treating this tribunal decision like any other.

He also said Hlophe could not, in law, be suspended until the commission has made its decision.

Full Sunday Times report (subscription needed)