Hlophe accuses high court of trying to rewrite the law

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Western Cape judge president John Hlophe has accused a full bench of the Johannesburg high court of misreading case law to come to the conclusion that the Judicial Service Commission was properly constituted when it concluded he should be impeached.

In his application for leave to appeal the high court’s dismissal of his challenge to that decision, Hlophe argues that the high court seemingly did so to save JSC from the consequences of not properly constituting itself.

This was not its place, he said, adding that instead the court should have punished the commission for a litany of errors made in 13 years of investigating him for misconduct.

“The motive for the court in embarking on a new approach to interpreting section 178 to avoid what it calls a paralysis is a failure to appreciate its role in terms of section 172 of the Constitution and giving rise to a credible inference of a court intent on protecting unlawful proceedings for a purpose unrelated to the Constitution itself.”

Hlophe had argued before the high court that constitutional court Justice Sisi Khampepe could not rightly preside over the August meeting where it endorsed the findings of the Judicial Conduct Tribunal against him because the role of head of the judiciary had reverted to then deputy chief justice Raymond Zondo, and that Judge Boissie Mbha of the supreme court of appeal lacked the standing to represent the head of the appellate court. 

Mbha represented the appellate court because both SCA president Mandisa Maya and deputy president Xola Petse had recused themselves from dealing with the complaint against Hlophe. 

The court found that the law allowed the JSC to appoint an acting chairperson, in this case Khampepe, if neither the chief justice nor the deputy chief justice were available. 

And it found that Mbha’s presence was acceptable, though the law does not make explicit provision for a replacement for the president or deputy president of the appellate court if neither were available, it held that purposive, constitutional interpretation, it should be allowed to prevent paralysis of the JSC. 

Had he not been allowed to stand in for Maya and Petse, the JSC would not have been quorate.

The court said that the intent of section 178 of the Constitution — which provides for the establishment of the JSC and determines its composition — was to regulate judicial affairs and to ensure the integrity of the judiciary. Therefore a purposive interpretation of the Constitution should be allowed to prevent paralysis of the JSC.

A more restrictive reading, to the effect that the JSC was incapable of deciding whether a judge had misconducted himself, “would fly in the face of the need to address infractions into the integrity of judicial independence”.

Hlophe counters in his application that the court was trying to rewrite the law and wrongly dismissing fidelity to the letter of the section 178 as mere formalism. 

“The court has no power to or obligation to avoid the consequences of unlawful conduct irrespective of the consequences and who is involved.

“It gives an impression of a court that wanted to uphold the unlawful JSC findings at all costs even because of pragmatism. That approach flies in the face of the principle of the rule of law, the supremacy of the Constitution and the limits of judicial power.”

He said when the purpose of the JSC is to inquire into whether a judge is guilty of gross judicial misconduct, the composition of the JSC must include members of the JSC that are specifically assigned to be members of the JSC. 

He said this principle was enshrined as precedent in JSC v Cape Bar Council, Acting Chairperson: Judicial Service Commission and Others v Premier of the Western Cape Province, the latter being a decision handed down in the course of the ample litigation around his case.

Hlophe disputed that Maya and Petse were irredeemably conflicted and said the court’s conclusion that he was seeking to immunise himself from impeachment by arguing that in their absence the JSC could not proceed was “alarmist”.

It also imputed intent to him that was not there. 

“Disparaging remarks against the litigant was not within its remit.”

The JSC’s finding stemmed from a complaint filed by the constitutional court after Hlophe sought to sway justices Bess Nkabinde and Chris Jafta, in 2008, on a pending ruling relating to the corruption case against French arms manufacture Thales and a then aspirant president, Jacob Zuma. 

On the merits, Hlope maintained that his conduct did not cross the threshold to misconduct and that no harm was done.

He said judges too enjoyed constitutionally guaranteed right to speech in section 16 of the Constitution and that extra-judicial remarks made by a judge should be judged against the constitutional standard of the Bill of Rights and within the context these were made.

“While accepting that judges may not violate judicial independence in their remarks both publicly and privately, it is not consistent with the constitutional standard of gross judicial misconduct to remove a judge for private remarks made to a friend — who on the evidence was uncomfortable with them — but did not consider them to mean anything in relation to his or her duty to deliver a judgement.”