To impeach or not to impeach? The final chapter of the John Hlophe saga

The Hlophe matter returns to the JSC this week Friday (30 July 2021), for a decision on how to deal with the Judicial Conduct Tribunal’s finding that the Western Cape judge president John Hlophe is guilty of gross misconduct.

The JSC adjourned after the last hearing on the matter without reaching a decision on the report of the Tribunal.  The Tribunal found that the judge president had tried to influence two judges of the Constitutional Court in relation to a judgement that was pending related to corruption charges against President Zuma.

What are the next steps?

The Commission must make a finding as to whether the respondent is suffering from incapacity, is grossly incompetent; or is guilty of gross misconduct. Once such a finding is made, the report containing that finding must be sent to the National Assembly. At this stage the President may suspend the judge concerned.

No precedent

Once the matter has been sent to the National Assembly, the National Assembly must vote on the removal of the judge concerned. Two thirds of the Assembly must vote in favour of the removal for the judge to be removed from office. There is no precedent for such a vote in Parliament, nor rules as to how such a matter should be dealt with. No judge has yet been removed from office in terms of the procedure set out in the Constitution.

There are processes for the impeachment of other persons who are not judges. In relation to the impeachment of the Public Protector (PP), a committee of parliament must reach a finding that the PP must be removed, followed by a vote in favour by two thirds of the members Parliament. These rules are the subject of challenge by the PP in the Western Cape High Court.

The rules for the impeachment of a President were developed in 2018 and involve a finding of a panel of three independent experts that there is a case to answer, followed by the setting up of an impeachment committee to consider the report. A positive report must also be voted on in favour by two thirds of the members Parliament before the President is impeached.

The decision of the JSC this week will have consequences, but it is not clear that the rules of Parliament are ready for one of the possible outcomes.

**Update 29 July 2021**

On 28 July 2021 the JSC issued an official media statement announcing the postponement of their virtual meeting on Friday, 30 July 2021 to 25 August 2021 as a result of ill-health of two of its members.