JSC votes to impeach Hlophe
In April 2021, the JSC Tribunal handed down its decision, finding Judge Hlophe guilty of gross misconduct. The Tribunal found that on a proper and objective consideration of the facts and probabilities, Judge Hlophe’s conduct breached section 165 of the Constitution (the provision protecting judicial independence) in that he tried to improperly influence Justice Nkabinde and Jafta to rule in a particular way. The Tribunal’s decision was subsequently referred to the Judicial Service Commission to take a final decision on Judge Hlophe’s impeachment.
JSC’S CONSIDERATION OF THE HLOPHE TRIBUNAL DECISION
The JSC was scheduled to sit on 4 June 2021 to consider the Tribunal’s decision which found Judge Hlophe guilty of misconduct. Howoever, the JSC announced that it could not finish its deliberations and postponed the matter to 30 July 2021 for a final decision. However, two of the JSC’s members took ill before the meeting of July and it was further postponed to 25 August 2021.
When considering misconduct complaints against judges the JSC sits without the members of parliament but only with lawyers and judges, the so-called ‘Small JSC’. See who sits on the JSC panel here: https://www.judgesmatter.co.za/opinions/who-sits-on-the-jsc-panel/
JSC’s DECISION TO IMPEACH HLOPHE
On 25 August 2021 the JSC announced that an 8 to 4 majority of its members had decided to uphold the findings of the Tribunal and voted to impeach Judge Hlophe for gross misconduct. The JSC undertook to give reasons later.
The JSC has also given Judge Hlophe until 3 September 2021 to give reasons why he should not be suspended pending the finalisation of the parliamentary process.
WHAT HAPPENS NEXT?
The JSC’s impeachment recommendation will now be sent to the National Assembly in Parliament, for final decision on the removal of Judge Hlophe from office. We believe that the Speaker must call for a special sitting of the National Assembly where members will debate the JSC’s recommendation and take a vote on removing Judge Hlophe from office. A two-thirds majority is required. In the meantime, the Speaker must circulate the JSC’s recommendation with the full reasons to all members of parliament.