Calls for Ramaphosa to suspend Hlophe without delay

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The call by the Judicial Service Commission (JSC) for Western Cape judge president John Hlophe to be suspended was overdue and should be heeded by President Cyril Ramaphosa without delay, legal observers said on Tuesday.

“Freedom Under Law is relieved that the JSC has finally done its duty and recommended suspension,” said the executive officer of the non-profit organisation, Judith February.

“We trust the president will now deal with this matter expeditiously. It is always regrettable when a judicial officer is suspended, especially someone in such a senior position as judge president Hlophe, but this was in the interests of justice given how long this matter has dragged on for.”

The Hlophe matter has haunted the judiciary since May 2008, when all the justices of the constitutional court filed a complaint with the JSC alleging that he had sought to sway justices Bess Nkabinde and Chris Jafta on pending rulings related to the arms deal corruption case against then aspirant president Jacob Zuma.

A judicial conduct tribunal found him guilty of gross misconduct in April 2021 for breaching section 165 of the Constitution. The years in between saw the handling of the complaint repeatedly mired in litigation, resulting in it being halted, reversed and eventually returned to the panel for investigation in 2018. 

In August 2021, the JSC, in a majority vote, endorsed the finding of the tribunal and held that Hlophe should be impeached. At this point it asked him to provide reasons why he should not be suspended pending the outcome of the applicable parliamentary process.

But Hlophe again turned to the courts to take the JSC’s finding on review. The Johannesburg high court dismissed his bid to have its finding overturned in May, with a full bench saying he had failed to raise proper grounds for review.

The court nonetheless granted him leave to appeal because the case raised significant matters of public interest. The application had been twofold, with Hlophe also seeking to interdict the JSC from initiating his suspension.

Mbekezeli Benjamin from Judges Matter recalled that the JSC then agreed to place a decision on suspension on hold pending the high court ruling, but that this reprieve did not extend to any appeal, hence the commission could pronounce on the matter as it did after a meeting on Monday.

“It was overdue, for two reasons. The first is that when the JSC appoints a tribunal to investigate a complaint against a judge, ordinarily that goes with a recommendation of a suspension,” Benjamin said.

This has been the case with judges Tintswalo Makhubele, Mushtak Parker and Nkola Motata.

Hence, Benjamin said, the JSC had an earlier opportunity to call for Hlophe’s suspension when a tribunal was initially appointed to investigate the misconduct complaint. The second opportunity came when the tribunal found him guilty of misconduct, but was then placed on hold given the court application.

“Someone who faces such serious allegations that the JSC deems it necessary to appoint a tribunal to investigate means that that person carries a risk to the reputation of the judiciary. On that level alone, there are sufficient grounds to suspend him,” he said.

But Benjamin added that the political nature of the specific allegation against Hlophe perhaps added another layer of risk to the independence and integrity of the judiciary in this instance.

Glynnis Breytenbach, the Democratic Alliance spokesperson on justice, called on Ramaphosa to move to suspend Hlophe immediately.

“Judge Hlophe has tainted the judicial system for over a decade. The president ought to waste no further time in taking his decision,” she said.

Presidential spokesman Vincent Mgwenya said Ramaphosa would “wait for the formal communication from the JSC with the expected accompanying report and then apply his mind”.

Nicole Fritz from the Helen Suzman Foundation said Hlophe had been afforded more grace than less powerful members of the bench.

She said the JSC’s call “now finally goes some way to resolving the yawning disparity that far less senior judges with much less power, like judges Makhubele and Parker, have been suspended when facing the prospect at removal from office and at the beginning of that removal procedure, and not at the very end, as with Hlophe.”