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The recent decision and announcement of the Judicial Services’ Commission (JSC) that it will not recommend to President Cyril Ramaphosa that Western Cape High Court Judge President, John Hlophe, be suspended until his challenge against the gross misconduct finding against him are finalised, is shocking. It raises two fundamental questions: firstly, whether Hlophe will ever face impeachment for his gross misconduct; and secondly - and more importantly - whether the JSC is willing and able to carry out its crucial constitutional role impartially, competently and without fear, favour or prejudice?
The above follows on the JSC’s Judicial Conduct Tribunal ruling earlier this year in April when it unanimously found against Hlophe, deciding he had tried to “improperly influence” Justice Bess Nkabinde and Justice Chris Jafta in a pending case before the Court at the time, regarding Jacob Zuma. The tribunal ruled that Hlophe had breached Section 165 of the Constitution in that he attempted to “improperly influence” the two justices of the Constitutional Court to violate their oaths of office.
According to Sello Chiloane, Secretary of the JSC - ‘the JSC has not advised the President to suspend Judge President Hlophe’ and ‘it does not intend to do so until his application is decided’. Reports indicate that this will also extend to any appeal that Hlophe might lodge in the matter going forward.
How can the JSC possibly countenance Hlophe’s continuing role as a Judge President after having found him guilty of gross misconduct?
The Constitution is very clear on the route that the JSC must follow. Section 177(1) Determines that a judge may be removed from office if -
(a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
(b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.
Issued by CEO of the FW de Klerk Foundation Adv Jacques du Preez
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