Cape Town – The National Assembly (NA) has voted for the removal from judicial office of Judges John Hlophe and Nkola Motata.
During its sitting on Wednesday, the NA adopted the Portfolio Committee on Justice and Correctional Services’ reports recommending the removal of Judges Hlophe and Motata.
Having considered the documentation before it, including the written representations from Judge Hlophe and having applied its mind through deliberations, the Portfolio Committee on Justice and Correctional Services, by majority, recommended the removal of Judge President Hlophe and Judge Motata from judicial office.
The Committee, having considered the referral submitted in terms of section 20(4) of the Judicial Service Commission Act read with section 177(1) of the Constitution, recommended that the National Assembly resolve to call for the removal of the two Judges from office.
A total of 305 members voted for the removal of Judge Hlope from judicial office and 27 members voted against his removal.
On the removal of Judge Motata, 296 members voted for his removal from office, one was against, and 13 members were recorded as having abstained.
The move came after the Judicial Service Commission (JSC) found Judge President Hlophe guilty of attempting to influence two Justices of the Constitutional Court to violate their oaths of office.
This related to a case dating back to 2008 when Judge President Hlophe was accused of attempting to influence the court’s judgment in the Thint/Zuma alleged corruption matters.
The case involved former President Jacob Zuma.
Retired Judge Motata was found guilty of gross misconduct following a drunk driving conviction in 2009.
The JSC Act provides for oversight of judicial conduct and the accountability of judicial officers and sets out the process that must be followed when a complaint is laid against a judicial officer.
The Act distinguishes between impeachable offences, serious non-impeachable offences, and lesser offences.
An impeachable offence involves incapacity, gross incompetence, or gross misconduct on the part of a judicial officer, as envisaged in section 177(1) of the Constitution.
Section 177 of the Constitution clearly distinguishes between the powers and functions of the JSC and the NA in the process of removal of a judge from judicial office.
In terms of section 177(1)(a), the JSC is responsible for making the finding on whether a judge is guilty of gross misconduct, while in terms of section 177(1)(b), the NA is tasked with determining whether a judge who has been found guilty of gross misconduct should be removed from office.
Following years of delays caused by various litigation, the Chief Justice appointed a Judicial Conduct Tribunal (JCT) in terms of section 21 of the Judicial Service Commission Act to investigate and report on the complaint.
The JCT found (on 25 August 2021) that Judge President Hlophe’s conduct breached the provisions of section 165 of the Constitution.
Additionally, the JCT found that Judge President Hlophe’s conduct threatened and interfered with the independence, impartiality, dignity, and effectiveness of the Constitutional Court and that it threatened public confidence in the judicial system.
The JSC, having considered the JCT’s report, the record, and submissions from the parties, by a majority decision, decided to uphold the JCT’s decision that Judge President Hlophe was guilty of gross misconduct as envisaged in section 177 of the Constitution.
On the matter regarding Judge Motata, the JCT found Judge Motata guilty of gross misconduct and recommended that the JSC invoke section 177(1)(a) of the Constitution, which provides that a judge may only be removed from office if the JSC found that the Judge suffers from an incapacity, is grossly incompetent, or is guilty of gross misconduct.
The NA said its resolution on the removal of the two judges will now be communicated to President Cyril Ramaphosa.
