The seemingly endless saga of the gross misconduct complaint against Western Cape Judge President John Hlophe is never far from the news, and his latest manoeuvre to avoid being impeached is picked up in a Sunday Times commentary by legal writer Franny Rabkin.

She writes that it is sometimes forgotten that in 2009 the JSC had in fact cleared him of the gross misconduct for which he now stands to be impeached.

But Helen Zille, then Premier of the Western Cape, challenged the JSC's decision, and won. The JSC had to start from scratch.

Twelve years later it found that Hlophe was guilty.

Now, in 2021, Hlophe is relying on the judgment obtained by Zille to challenge the JSC's guilty finding.

As previously reported, Hlophe urgently went to court last week to seek to interdict his possible suspension by President Cyril Ramaphosa and to stay the impending impeachment process by Parliament, pending his challenge of the JSC's finding.

Hlophe has brought his challenge to this majority decision on a number of grounds.

One is that the JSC's 25 August meeting was not lawfully constituted. This was exactly how Zille successfully overthrew the JSC's decision to clear him in 2009. She argued then that the JSC had not been properly constituted because she, the Premier, was in terms of the Constitution entitled to be on the JSC when it made its decision, and she was not.

The SCA agreed. The Constitution lists specific office bearers who make up the JSC; these include the Chief Justice and the President of the SCA.

In his application, Hlophe said the Chief Justice and the Deputy Chief Justice were not at the meeting that found him guilty.

The President of the SCA was not there, nor was her deputy.

The Sunday Times report notes Constitutional Court Justice Sisi Khampepe and SCA Judge Boissie Mbha were present.

However, said Hlophe, ‘to my knowledge, Justice Mbha was not entitled to act as the alternate of the President of the SCA’.

The JSC allows for ‘alternates’ for some of the office-bearers set out in the Constitution. But it says if the Chief Justice or President of the SCA are ‘temporarily unable to serve on the commission’, then ‘the Deputy Chief Justice or the Deputy President of the SCA, as the case may be, acts as his or her alternate’.

Said Hlophe: ‘The distinction in the drafting of the constitutional provisions must have been deliberate.’

He said at the time of the meeting, Khampepe was not the Chief Justice or deputy and ‘therefore lacked the status as required in section 178(8) of the Constitution’.

The JSC v Zille judgment was built on by another SCA judgment, which said that, just like with the Premier, the JSC would not be properly constituted if the Chief Justice or deputy was not there.

Likewise with the President of the SCA or deputy.

Full Sunday Times report (subscription needed)