Despite last-ditch attempts to scupper their removals, both suspended Western Cape Judge President John Hlophe and retired Judge Nkola Motata are highly likely to become the first judges in democratic South Africa to be removed as the African National Congress (ANC) and Democratic Alliance (DA) support the move.

This means that the two-thirds majority required to remove a judge from the Bench will most likely be achieved in a vote in the National Assembly, after the portfolio committee on Wednesday adopted recommendations for Hlophe and Motata's removal.

It was an arduous journey to reach this point. The gross misconduct finding against Hlophe dates back to 2008.

In May of that year, justices of the Constitutional Court laid a complaint with the Judicial Service Commission (JSC) about Hlophe's attempt to convince Justice Chris Jafta and Justice Bess Nkabinde to rule in former president Jacob Zuma's favour in his bid to overturn warrants used to seize 93 000 pages of corruption trial evidence against him.

In August 2008, the JSC's sub-committee found that there wasn't sufficient evidence to sustain a finding of gross misconduct against Hlophe. The JSC upheld this, but issued a rebuke and a caution against Hlophe.

Another long court battle ensued, initiated by then DA leader Helen Zille, culminating in the JSC having to reconsider the matter.

After further legal wrangling, the JSC found Hlophe guilty of gross misconduct – grounds for removal in terms of Section 77 of the Constitution – in August 2021.

This landed the matter on the portfolio committee's agenda for the first time, but it was put on ice as Hlophe approached the courts.

In May 2022, Gauteng High Court judges Aubrey Ledwaba, Roland Sutherland and Margaret Victor dismissed Hlophe's application, stating that his challenges to the JSC process, if applied, would render judges untouchable.

Hlophe then appealed to the Supreme Court of Appeal (SCA).

In June, Hlophe's appeal against the gross misconduct finding lapsed because he didn't file the court record by the deadline.

Hlophe stated that he didn't have the funding to print the record and, in separate court proceedings, argued for untrammelled state funding for his legal defence against impeachment.

Meanwhile, the parliamentary proceedings were revived.

In September, the committee resolved to write to Hlophe informing him that it was accepting the JSC finding of gross misconduct against him as "judicial fact".

Disputing this judicial fact is what much of Hlophe's submission – penned by Advocate Thabani Masuku SC and two juniors – revolves around.

In fact, the committee last month received a similar submission from Hlophe and, upon legal advice, concluded that there was nothing that prevented it from considering his removal.

In the latest submission, Masuku wrote, on Hlophe's behalf: "The merit issues remain the subject of a pending judicial review appeal process, which has been hamstrung by the state's failure to fund Judge President Hlophe's legal representation and related legal costs, including costs for the court appeal record."

Hlophe wants to make oral representations to the committee and wants the committee to "conduct a parliamentary inquiry into the allegations of unlawful extraneous interference in the JSC process leading to the finding of gross misconduct" against him, and to intervene in securing funds from the state to allow him to continue with his litigation.

He also wants the committee to "consider the 2008 finding of the JSC that exonerated Judge President Hlophe of gross judicial misconduct and compare it with the 2021 JSC finding of gross judicial misconduct".

Furthermore, as extenuating circumstances, Hlophe presented his "record of public service", which mentioned his academic qualifications, which include a PhD from the University of Cambridge in the UK.

The submission reads: "Judge President Hlophe continues to be held in high esteem by many African jurists and scholars for his contribution to jurisprudence."

Parliamentary legal advisor Barbara Loots said they "respectfully disagree" with Hlophe's assertion that the merits of the matter have not been settled.

"We have actually consulted with senior counsel on this and they agree with us that there is a legitimate decision for the committee to consider," said Loots. 

"The Constitution says when there is a duty on Parliament to act, it must do so diligently and expeditiously."

She said in the absence of an interdict prohibiting Parliament from fulfilling its constitutional mandate, "there is an obligation on the committee to proceed".

Loots said Hlophe's appeal to the committee to conduct its own inquiry would be against the constitutional mandate in terms of Section 77 of the Constitution, which deals with the removal of judges.

Regarding Hlophe's request that the committee intervene regarding his funding, Loots said it was "not for the committee to get involved in litigation management issues".

The ANC's Qubudile Dyantyi said the issues Hlophe raised had already been comprehensively dealt with, and it would be wholly inappropriate for the committee to second-guess the JSC.

He proposed that the committee adopt a recommendation for Hlophe's removal. 

The DA's Werner Horn agreed.

He added that Hlophe's "record of public service" was a two-edged sword, as it meant he had no room to argue that his gross misconduct was a momentary lapse of judgement.

The ANC's Xola Nqola said the matter had been dragging on for far too long and that the JSC had made a finding of gross misconduct against Hlophe after an inquiry, which withstood judicial scrutiny.

The Economic Freedom Fighters's Busisiwe Mkhwebane, who herself was removed as Public Protector just over two months ago, insisted that the matter was still before the courts and that Parliament therefore shouldn't touch it.

She was also insistent that the committee should intervene to ensure that Hlophe gets funding from the Department of Justice and Constitutional Development.

Dyantyi said Hlophe was free to approach the court for an interdict, and Horn agreed that there was no legal impediment to the committee moving forward.

This did not sway Mkhwebane, who referred to Hlophe as "chief justice" because she viewed him as "the chief justice we never had the opportunity to have".

"I'm still repeating, chairperson, that the process is not complete. Let's give the appeal an opportunity to be ventilated," she said.

"Let's make sure he is fully and properly funded to defend his case," said Mkhwebane, whose Stalingrad defence against her removal as Public Protector cost the taxpayer more than R30-million.

Dyantyi said he remained "unpersuaded" by Mkhwebane – and the DA's Glynnis Breytenbach said she couldn't "agree less" that the state should foot Hlophe's legal bill.

Committee chairperson Bulelani Magwanishe ruled that the committee's majority view was that it would recommend Hlophe's removal to the National Assembly.

Motata's matter took a similar amount of time to reach this point.

In 2007, an inebriated Motata crashed his vehicle into the boundary wall of Richard Baird's Hurlingham home in Johannesburg. Two years later, the Gauteng High Court in Johannesburg convicted Motata of driving under the influence of alcohol and sentenced him to a fine of R20 000 or 12 months' imprisonment.

It was referred to a JSC tribunal, which found Motata guilty of gross misconduct and recommended to the JSC that he should be removed as a judge.

However, a JSC majority report found that Motata being three sheets to the wind was a mitigating factor, and it didn't address that Motata had lied when he denied being drunk.

Former Chief Justice Mogoeng Mogoeng signed off on this report, which found Motata guilty of misconduct and issued a fine of over R1-million.

However, Freedom Under Law took the matter to court, arguing that Motata should be found guilty of gross misconduct. This case concluded in June, when the SCA set aside the JSC majority report.

The court elected not to refer the Motata saga back to the JSC for a fresh decision, but referred it to Parliament.  

In his submission to the committee, Motata argued that the JSC didn't properly refer a finding of gross misconduct to the committee and that the National Assembly therefore "lacks jurisdiction" to decide the matter. He also said double jeopardy applied, as he had paid the R1.1-million fine.

Magwanishe said he wrote to the JSC asking it to confirm whether it considered the SCA's ruling having been made a decision of the SCA and for clarity on the fine that Motata paid.  

A meeting of the "small JSC" – the JSC excluding the MPs that serve on it – was convened and Chief Justice Raymond Zondo, as chair of the JSC, confirmed in a letter that the SCA ruling replaced the JSC finding; that the fine was considered as something to be resolved between the JSC and Motata; and that it didn't prevent Parliament from concluding its work.

Dyantyi thanked Magwanishe for clarifying and proposed that the committee recommend Motata's removal.

Breytenbach indicated the DA's support.

Mkhwebane said they were dealing with the life of a retired judge.

She said: "Where is the ubuntu? To deal with Africans like this is not proper."

The rest of the committee was not swayed.

Horn said that, as MPs, they had all sworn allegiance to the Constitution, which included non-racialism and the suggestion by "the honourable Mkhwebane, let me say Ms Mkhwebane" that an African judge must be treated differently flew in the face of that.

The ANC's Nomathemba Maseko-Jele, while expressing sympathy with Motata's family, said ubuntu could not be used "loosely"; they had looked at the facts and the circumstances of the matter.

The African Christian Democratic Party's Steve Swart said his party supported Motata's removal and he believed the committee had applied its mind.

Magwanishe said, by majority view, the committee would recommend Motata's removal to the National Assembly.

The committee must now adopt a report with its recommendations, which will be tabled to the National Assembly for consideration.