Judge Nkola Motata and Western Cape Judge President John Hlophe. Archives
Judges John Hlophe and Nkola Motata will know by today whether a motion tabled by the National Assembly’s portfolio committee on justice and correctional services succeeds or not following a vote on their impeachment.
The urgent application by Judge Hlophe to the Western Cape High Court to interdict the impeachment process from taking place pending his application for direct access to the Constitutional Court has been opposed by Parliament.
The committee completed its work last December after it found Judges Hlophe and Motata guilty of gross misconduct and recommended that Parliament must remove them from office.
Parliament could not find a date for the matter and decided on today. The voting will take place after the Budget speech by Finance Minister Enoch Godongwana.
Director of the Centre for the Advancement of Non-Racialism and Democracy at the Nelson Mandela University, Professor Bheki Mngomezulu, said impeachment was not a good thing.
He said former public protector Busisiwe Mkhwebane was impeached last year by the ad hoc committee and she lost her benefits. Mkhwebane is now an EFF MP.
“In the case of the two judges, the judgment must be clear whether they lose all their benefits or only those which accrued after the charges had been laid,” said Mngomezulu.
Head of the Department of Politics at Unisa, Professor Dirk Kotze, said the impeachment of the two judges showed the independence of the judiciary.
He said the step taken by the judiciary and Parliament was to protect the independence of the judiciary in South Africa.
“The impeachment of the two judges is very important for judicial independence and the decorum of the judiciary. Judge Hlophe was always regarded as sympathetic towards former president Jacob Zuma and his actions to try to influence two Constitutional Court judges is therefore untenable in a democratic dispensation.
“The action taken by the Judicial Service Commission and Parliament is therefore a necessary step to protect the independence of the judiciary and its integrity in the public’s eyes. It also confirms that the national legislature as the council of public representatives is the highest authority in protecting the three authorities of the state.
“In addition, it confirms the constitutional principle that the judiciary is not untouchable and can also be sanctioned for unethical behaviour. It is meant to strengthen the judiciary’s credibility and integrity," said Kotze.
Professor Sethulego Matebesi from the University of the Free State said the impeachment raises questions about the judiciary.
He also said the impeachment of the two judges casts doubt about the ability of the judiciary to uphold the rule of law.
“The impeachment of a judge has implications for the legal industry and democracy. Thus, the impeachment process for the two judges, irrespective of the outcome, creates doubt about the ability of the judiciary to uphold the rule of law and ensure that justice is served fairly and impartially,” said Matebesi.
He said from a societal perspective this raises questions about accountability and transparency. The impeachment process leaves a bitter taste in the mouth of society with fractured trust of state actors and institutions, he said.
Hlophe was impeached by Parliament after the Judicial Service Commission sent a report to Parliament to institute proceedings against him.
This was after he was found to have tried to influence judges of the Constitutional Court on cases involving former president Jacob Zuma.
Justices Bess Nkabinde and Chris Jafta testified against Judge Hlophe in the JSC hearings.
Judge Motata was found guilty of drunk-driving by a court after he crashed his Jaguar into a boundary wall of a house in Johannesburg in 2007.
Judge Motata retired in 2017. But Freedom Under Law went to the Supreme Court of Appeal to challenge the findings of the JSC against him after he was fined for offences.
The SCA said Judge Motata committed gross misconduct.
Parliament will require 267 members out of 400 members of the National Assembly to vote in support of the resolution of the portfolio committee on justice to remove each of the two judges.
ANC members in the committee supported the motion for the impeachment of Judges Hlophe and Motata.
Only the EFF, which was represented by Mkhwebane in the justice committee, opposed the motion to remove the two judges.
The ANC and other parties agreed on the impeachment of Judges Hlophe and Motata.
Parliament said this week it had filed papers in the High Court in the Western Cape to oppose Judge Hlophe’s interdict application.
However, it said the process was going to go ahead in the Chamber unless it was stopped by an order of court. It said its laws were sufficient to remove Judges Hlophe and Motata from office.
siyabonga.mkhwanazi@inl.co.za