JSC kicks the Hlophe can down the road
It was a surprise to nobody in the legal profession when the divided JSC ducked out of taking any decision – except to postpone the process that has dragged on for 13 long years – on whether Western Cape Judge President John Hlophe should face impeachment.
JSC spokesperson Doris Tshepe confirmed that the so-called ‘small JSC’ – which, as legal writer Karyn Maughan explains in a News24 report excludes politicians – had considered the gross misconduct findings against Hlophe on Friday, but had not yet decided on whether to recommend that Hlophe be suspended pending possible impeachment in Parliament.
That can has been kicked further down the road to 30 July.
Hlophe was found guilty of gross misconduct for attempting to sway two Constitutional Court justices to rule in favour of Jacob Zuma in 2008 – when the then ANC president was challenging the validity of warrants used to seize 93 000 pages of corruption trial evidence against him.
The Judge President has denied any wrongdoing and claims his discussions with Justices Bess Nkabinde and Chris Jafta were innocent academic debates.
The only certainty about the future of this matter, is that we should prepare for the long haul, for, as Maughan points out in another News24 report, while it is clear that Hlophe will challenge any JSC decision that goes against him, it is equally apparent that any decision that does not recommend that he faces an impeachment process will also be the subject of litigation.
The Council for the Advancement of the South African Constitution (Casac) noted last week that the 13-year-long history of the Hlophe matter had been defined by various court challenges from the JSC, Hlophe, Nkabinde and Jafta that ‘have caused unjustifiable and expensive delays in finalising the matter’.
‘There have been no less than 14 reported judgments delivered in connection with the complaint since 2008. Even now, it is reported that Hlophe intends to take the JCT's latest ruling on review, potentially causing further delays.’
Casac said the matter had ‘cast a long shadow, not just over the Constitutional Court, but the judiciary in general, and has exposed the JSC's dilatory approach and ineffectiveness when it comes to dealing with complaints of judicial misconduct.’
The JSC has refused to provide any explanation for the latest delay – a failure that Casac's's Lawson Naidoo has slammed as 'an affront to the foundational constitutional principles of accountability, responsiveness and openness'.
'This only serves to undermine the integrity and independence of the judiciary, a cornerstone of our democracy.'
News24 says it has now established from impeccable sources that the 'small JSC' could not reach a consensus on whether Hlophe was guilty of gross misconduct and should be suspended pending a parliamentary vote on his possible removal from office.
As a result, those JSC commissioners with firm views for and against Hlophe's impeachment have now been tasked with writing dissenting rulings on the Judge President's fate, which will then be the subject of a vote.
Should a majority of the JSC's commissioners support impeachment and suspension for Hlophe, the JSC will recommend to President Cyril Ramaphosa that he authorise the Judge President's suspension, and the Tribunal's findings will then be referred to the National Assembly.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
