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Parliament has filed a replying affidavit in the Western Cape High Court arguing, among others, that the current laws allow it to proceed with the matter involving the removal of Judges John Hlophe and Nkola Motata.

Judge Hlophe has on Tuesday 13 February, lodged an urgent application for the High Court to order that “pending the outcome of (his) application for direct access to the Constitutional Court, the Speaker and/or the National Assembly (NA) be interdicted from going ahead to vote in terms of Section 177 of the Constitution for (his) removal from judicial office.”

In his application, Judge Hlophe argues that Parliament has failed to adopt the necessary rules for the removal of judges in terms of Section 177 of the Constitution. Judge Hlophe incorrectly argues that because the NA does not have such rules – which he argues will guarantee a lawful and fair process that is consistent with Parliament’s constitutional obligations under Section 165 of the Constitution – the vote and adoption of a resolution on the motion to remove him, will be unconstitutional and a direct violation of judicial independence and the separation of powers.

Parliament believes that its decision to go ahead with considering the Portfolio Committee on Justice and Correctional Services’ recommendations to remove Judges John Hlophe and Nkola Motata is correct, as established general rules and practices of the National Assembly sufficiently allow for such consideration in giving expression to its section 177(1)(b) constitutional mandate.

In its replying affidavit, Parliament also argues that it has no constitutional or statutory power to duplicate the work of the Judicial Services Commission (JSC) by conducting another investigation into the conduct of Western Cape Judge President, Judge John Hlophe. Parliament believes that the JSC, being dominated by lawyers with the necessary expertise, is the correct body to make the necessary finding in terms of Section 177(1)(a) of the Constitution. This position was confirmed by the High Court in its 2022 judgment of Hlophe v JSC and Others, where Judge Hlophe called for the duplication of the investigation phase without success.

Parliament views Judge Hlophe’s application as tantamount to ignoring the separation of powers and conflating the process into almost an appeal or review function whereby the NA will have the power to override the JSC’s finding.

“Such an approach would negate the pivotal role played by the JSC and ignore its constitutional importance and independence,” Parliament states in its replying affidavit.

Both Judges were found guilty of gross misconduct by the JSC, with Judge Hlophe’s case dating back to 2008 when he was accused by Constitutional Court Justices of attempting to influence that court’s judgement in the Thint/Zuma matters involving former President Jacob Zuma. Retired Judge Motata, on the other hand, was convicted of drunk driving in 2009.

Meanwhile, the National Assembly is scheduled to consider the report of the Portfolio Committee on Justice and Correctional Services recommending that Judges Hlophe and Motata be removed from the register of judicial officers on Wednesday, 21 February 2024.

Issued by the Parliament of the Republic of South Africa