JSC 'can’t predict' how long Hlophe gross misconduct process may take - but FUL demands dates

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Western Cape Judge President John Hlophe.
Western Cape Judge President John Hlophe.
Felix Dlangamandla, Netwerk24
  • John Hlophe was found guilty of gross misconduct, after a tribunal determined he had tried to influence two ConCourt justices.
  • The JSC says it does not feel any pressure to decide whether Hlophe should be impeached or suspended.
  • FUL says this isn't good enough and has written to the JSC, to demand commitments on whether these decisions will be made.

Freedom Under Law (FUL) has demanded answers from the Judicial Service Commission (JSC) about when it will make a decision on Judge President John Hlophe's possible suspension and impeachment for gross misconduct.

"The continued failure to deal with this matter properly and expeditiously erodes public confidence in the JSC and the judiciary as a whole; more so given the participation of Judge President Hlophe in the judicial selection process," FUL's lawyers wrote to the JSC on Wednesday afternoon.

FUL was responding to a letter sent by the JSC, in which it stated that "it is impossible to predict how long the current process being undertaken by the JSC [in relation to Hlophe] may take" and also defended its decision to allow the judge president to participate in the interviews of prospective judges for two positions at the Western Cape High Court.

READ | Zuma and Hlophe: Will ConCourt and JSC imprison and push to impeach?

FUL is adamant that there is "no basis for any delay in this regard" – particularly given the gravely serious nature of what Hlophe has been found guilty of.

Last Saturday, a Judicial Conduct Tribunal ruled that Hlophe should face impeachment for attempting to sway Constitutional Court Justices Chris Jafta and Bess Nkabinde to rule in favour of then ANC president Jacob Zuma in 2008 – when he was attempting to challenge search warrants used by the State to seize 93 000 pages of evidence against him.

Should the country's highest court have ruled in favour of Zuma, a significant part of the National Prosecuting Authority's corruption trial evidence against him would have been rendered inadmissible.

"The findings are of the most serious character and go to the very heart of the independence of the judiciary in terms of the Constitution," FUL states in its letter to the JSC.

Adriaan Basson | The end of John Hlophe, a judicial scoundrel

"Judge President Hlophe has been found guilty of improperly seeking to interfere with and influence the adjudicative functions of South Africa's highest court. It is difficult to envisage a graver situation in the context of a judge. This is no longer merely an allegation: it is a final factual and legal finding of an independent statutory tribunal appointed by the JSC itself."

Despite Hlophe having been found guilty of impeachable conduct by a JSC appointed tribunal, the JSC's spokesperson, Dali Mpofu, previously told News24 there was "nothing special" about the Hlophe matter and the commission felt "no pressure" to resolve it.

It subsequently emerged that the so-called "small JSC", which excludes politicians appointed to represent Parliament, would decide whether to endorse the tribunal's findings and recommend to President Cyril Ramaphosa that he be suspended on 4 June.

READ | Zuma's defence lawyers quit less than a month before corruption trial starts

But, as yet, there are no guarantees that the "small JSC" will make a decision on Hlophe's fate on that date, particularly given that it has elected to consider the full record of the tribunal's proceedings.

It will also consider input from both Hlophe and the Constitutional Court.

FUL has now asked that the JSC confirm by tomorrow (Thursday) at 16:00:

  • "When the JSC intends to take a decision on the recommendation to suspend Judge President Hlophe;
  • "That the JSC intends, at its meeting on 4 June 2021, to take a decision on whether to confirm the tribunal decision and refer Judge President Hlophe's impeachment to the National Assembly;
  • "That, to the extent that any person will have an opportunity to make representations, our client will likewise be afforded an opportunity to make representations before the above decisions are made."
  • It further insists that there is "no reason why a decision on the confirmation of the tribunal decision cannot be made on 4 June 2021", and argues that a decision to recommend Hlophe's suspension "should be made even earlier, for obvious reasons".

Finally, FUL's lawyers make one last appeal to the JSC to consider delaying the interviews for the Western Cape High Court's judicial vacancies, until such a time as a decision on Hlophe's future has been made – a call supported by both the Cape Bar Council and Western Cape Premier Alan Winde for reasons "too obvious to require recapitulation". 

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