Cape Town - Western Cape High Court Judge President (JP) John Hlophe may be part of a rumoured ‘hit list’ of politicians opposed to a second term for President Cyril Ramaphosa and Judge Hlophe’s potential impeachment is a “last desperate strategy”, according to a legal expert.
This comes after the Judicial Service Commission’s (JSC) announcement on Monday night and following deliberation on recommendations made to it, they have advised the President to suspend Judge Hlophe.
Meanwhile, Judge Hlophe’s legal team has slammed the processes by the JSC calling it “unlawful, irrational and blatant interference with judicial processes”.
Law expert Dr Paul Ngobeni said the decision of the JSC has very little to do with legal principles and everything to do with “political manipulation and disrespect of our judiciary”.
This while Judge Hlophe has a pending matter before the Supreme Court of Appeal (SCA) where he has been granted leave to appeal.
“It is now highly irregular that the same JSC, instead of awaiting the SCA judgement, has arrogated to itself the right to recommend Hlophe’s suspension by the President. Hlophe filed an application to review and set aside the JSC decision in 2021. At that time the JSC did not recommend his suspension. It is only when he was successful in his application for leave to appeal that the JSC sought to retaliate against him by hastily convening a meeting in which it recommended that Ramaphosa suspend Hlophe.
“This gives rise to an appearance of retaliatory animus by a body charged with defending judicial independence and that is out if kilter with our constitution…In addition there is flagrant interference with the SCA pending judgment in that the JSC is now forcing JP Hlophe to consider whether to file a separate appeal dealing with the recommendation of a suspension. There is no explanation of why the decision was made at the time the JSC issued its earlier decision which has already been referred to Parliament. The piecemeal decision making is clear evidence that the process is being politically manipulated and influenced by the racist NGOs such as Freedom under Law (FUL) which are unwilling to respect due legal process,” said Ngobeni.
He further said the JSC is sending the President on an unlawful detour.
“There are rumours that a hit list of politicians opposed to Ramaphosa’s second term is being activated – they will be criminally charged on flimsy non-existent grounds simply to neutralise them through December 2022 as part of the so called implementation of the Zondo State Capture report. The Western Cape High Court will be the legal battleground where most cases related to State Capture will be litigated. For that reason, removing JP Hlophe, the only JP they cannot control, seems to be their last desperate strategy.”
The President’s spokesperson Vincent Magwenya said Ramaphosa will wait for formal communication from the JSC with the expected accompanying report and then apply his mind.
Barnabus Xulu SC at BXI Attorneys has called on the JSC “to do this fairly”.
“At the moment, it is difficult to understand what is pushing them to make such decisions and following the current processes. The Western Cape is the best performing division in the country and there is also the fact that this matter, where Judge Hlophe was granted leave to appeal, is currently pending before the Supreme Court of Appeal.
“It is as if they are trying to put fear into the ones who are to adjudicate. This is interference and we will be writing a letter to the JSC asking for the reasons to making such decisions,” said Xulu.
According to Xulu, the process was not transparent as the evening meeting was held in the “dark hours” and despite requesting to know who was part of the decision making process, they have not been given any information.
“What is also important is that we do not want to speculate but we can confidently say that it is unlawful, irrational and interfering with judicial processes. We will be challenging this,” said Xulu.
In a media statement, the JSC said the meeting “constituted without members designated by the National Assembly and National Council of Provinces, deliberated and resolved to advise the President to suspend Judge President Hlophe in terms of section 177 (3) of the Constitution”.
Premier Alan Winde said he had virtually attended the meeting on Monday night where he voted to recommend the suspension.
“Given the serious nature of the finding of gross misconduct, I voted in favour of suspending him.
“This offence is very serious…and given how long this saga has been dragging on, I believe it must now be concluded,” said Winde.
The suspension recommendation was made after JP Hlophe was found guilty of gross misconduct after he had attempted to influence the outcome of former president Jacob Zuma’s corruption charges in 2008.
The judicial tribunal’s report stated that Judge Hlophe breached sections of the Constitution when he tried to influence two justices of the Constitutional Court to rule in a particular manner in a pending judgment between Zuma and the National Prosecuting Authority.
Cape Times