Western Cape Judge President John Hlophe said the portfolio committee did not independently consider whether the Judicial Service Commission’s findings against him accords with the law and Constitution. Picture: Ayanda Ndamane/Independent Newspapers
Parliament has hit back at the urgent application by Western Cape Judge President John Hlophe to interdict his impeachment vote scheduled for Wednesday.
Judge Hlophe has argued in court papers that Parliament failed to adopt rules for the impeachment of a judicial officer and its failure to do so has resulted in a flawed constitutional process for his removal from office.
The justice and correctional service portfolio recommended his impeachment last year, along with Judge Nkola Motata, following the Judicial Service Commission’s determination of their guilt for gross misconduct.
Judge Hlophe’s application for an interdict takes place as he approached the Constitutional Court for direct access wherein he is raising issues about the processes followed in deciding to recommend adopting and voting on his removal from office.
In his application for an interdict, Judge Hlophe said the matter was urgent for an order that pending an outcome of his application for direct access to the Constitutional Court, the National Assembly be interdicted from conducting an impeachment vote for his removal from judicial office.
He also said the portfolio committee did not independently consider whether the Judicial Service Commission’s findings against him accords with the law and Constitution.
Parliament had until last Thursday to file a notice of intention to oppose the application and an answering affidavit.
It has previously said it would press ahead with the impeachment vote unless there was a court interdict.
On Sunday, Parliament’s spokesperson Moloto Mothapo said that the national legislature filed a replying affidavit in the Western Cape High Court.
He said the judge incorrectly argued that because the National Assembly did not have such rules, the vote and adoption of a resolution on the motion to remove him would be unconstitutional and a direct violation of judicial independence and the separation of powers.
“Parliament believes that its decision to go ahead with considering the portfolio committee on justice and correctional services’ recommendations to remove judges John Hlophe and Nkola Motata is correct, as established general rules and practices of the National Assembly sufficiently allow for such consideration in giving expression to its section 177(1)(b) constitutional mandate,” he said.
Mothapo also said the national legislature argues that it has no constitutional or statutory power to duplicate the work of the Judicial Service Commission by conducting another investigation into Hlophe’s conduct.
“Parliament believes that the JSC, being dominated by lawyers with the necessary expertise, is the correct body to make the necessary finding in terms of Section 177(1)(a) of the Constitution.
“This position was confirmed by the high court in its 2022 judgment of Hlophe v JSC and Others, where Judge Hlophe called for the duplication of the investigation phase without success.”
He said Parliament viewed Judge Hlophe’s application as tantamount to ignoring the separation of powers and conflating the process into almost an appeal whereby the NA will have the power to override the JSC’s finding.
“Such an approach would negate the pivotal role played by the JSC and ignore its constitutional importance and independence.”
The urgent application will be heard in the Western Cape High Court on Tuesday ahead of the scheduled impeachment vote that will take place after Finance Minister Enoch Godongwana has tabled the Budget speech on Wednesday at 4pm.
Cape Times