The Portfolio Committee on Justice and Correctional Services will recommend to the National Assembly that retired Judge Nkola Motata and suspended Western Cape Judge President John Hlophe be removed from the Bench.

The African National Congress (ANC) and Democratic Alliance (DA) agreed that both judges, who have been found guilty of gross misconduct by the Judicial Service Commission (JSC), should be removed, but Economic Freedom Fighters (EFF) MP Busisiwe Mkhwebane, who was found guilty of misconduct by Parliament, opposed their removal.

Motata, who was convicted of drunk driving and falsely accusing the person whose wall he crashed into of racism, was found guilty of gross misconduct by the JSC after a protracted and litigious process.

In his case, Mkhwebane said, "Where is Ubuntu? To deal with Africans like this is not proper."

The rest of the committee was not swayed.

DA MP Werner Horn said MPs all swore allegiance to the Constitution, which includes non-racialism. The suggestion by "the honourable Mkhwebane, let me say Ms Mkhwebane," that an African judge must be treated differently flies in the face of that.

ANC MP Nomathemba Maseko-Jele, while expressing sympathy with Motata's family, said ubuntu cannot be used "loosely".

"Now, we cannot be made to feel guilty by the statement of honourable Mkhwebane," she said, adding that they had looked at the facts and the circumstances of the matter.

The gross misconduct finding against Hlophe dates back to 2008, but it took a route with many legal detours before reaching the point where his removal from the Bench was before Parliament.

In May 2008, justices of the Constitutional Court laid a complaint with the JSC about Hlophe's attempt to convince Justice Chris Jafta and Justice Bess Nkabinde to rule in favour of former president Jacob Zuma in his bid to overturn warrants used to seize 93 000 pages of corruption trial evidence against him.

After much legal wrangling, the JSC found Hlophe guilty of gross misconduct in August 2021.

The commission, in a majority ruling, found that Hlophe seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court.

The JSC ruled that Hlophe improperly attempted to influence Nkabinde and Jafta to violate their oaths of office.

This brought the matter to the portfolio committee's attention for the first time, but Hlophe reverted to the high court to review the JSC's decision, and the parliamentary process was put on ice.

In May 2022, Gauteng High Court judges Aubrey Ledwaba, Roland Sutherland and Margaret Victor shot holes in Hlophe's arguments as to why the misconduct allegations against him should either be referred back to the JSC "to deal with the issues as required by law" or should be decided through a new parliamentary inquiry.

The judges dismissed Hlophe's application, stating that his challenges to the JSC process, if applied, would render judges untouchable.

The full Bench also rejected Hlophe's arguments that four of the JSC members who voted in favour of him facing impeachment – Judge Boissie Mbha, Justice Sisi Khampepe, Western Cape Premier Alan Winde and Gauteng Judge President Dunstan Mlambo – were all conflicted and had demonstrated perceived bias against him.

Hlophe then appealed to the Supreme Court of Appeal. However, in June, Hlophe's appeal against the gross misconduct finding lapsed because he didn't file the court record by the deadline.

The portfolio committee has previously received a legal opinion that there is no legal impediment for it to continue with its work.

But Mkhwebane refused to accept this.

"I would still plead with this committee, let's give this matter an opportunity to be completely ventilated to court," she said.

Mkhwebane, whose defence against her impeachment proceedings cost the taxpayer more than R30-million, also wanted the committee to intervene to help Hlophe get funding from the Department of Justice.

She also called Hlophe "the chief justice we never had the opportunity to have".

Again, her arguments failed to convince the rest of the committee. ANC MP Qubudile Dyantyi, who chaired the committee that recommended Mkhwebane's removal as Public Protector, said he "remains very much unpersuaded" by Mkhwebane's arguments.

He said Hlophe was free to attempt to obtain an interdict but, in the meantime, Parliament was constitutionally obligated to deal with his matter – which has dragged on for 15 years – "without delay". This matter is "settled", Dyantyi said, before again stressing that it was not for the committee to relitigate it.

In both cases, the committee will recommend to the National Assembly that the judges be removed.

If such a motion is adopted with a two-thirds majority, the president must then remove the judges. If this happens, it will be the first time in democratic South Africa that a judge is removed.