The Importance Of Hlophe And Motata's Impeachment Vote For ...

Few will argue against Judge President John Hlophe’s and Judge Nkola Motata’s impeachment processes being a long time coming. With the final leg of the Hlophe and Motata now looming in Parliament, we explore the origins of these complaints, and why the impeachment vote is significant.

In terms of Section 177 of the Constitution,  a judge may only be removed if the Judicial Service Commission finds – through a tribunal inquiry – that they suffer from incapacity, are guilty of gross misconduct, and/or is grossly incompetent. The National Assembly will then debate the JSC’s findings and vote on the removal of either one or both judges. A two-thirds (or 267 of 400 MPs) majority resolution is required to remove a judge from office, and the president must carry it out.

It is both significant, but also bizarre that the 21st of February 2024 marks the first time in history, that we will witness a possible removal of a judge (or judges) for gross misconduct. The significance is not whether a certain judge will be removed from office, but that this step towards accountability is taking place at all. This time, the infamous saying that “justice should not only be done, but should manifestly and undoubtedly be seen to be done” will also apply to the protectors of justice themselves.

Hlophe’s case started in 2008 when nine justices of the Constitutional Court (CC) laid a complaint against him, accusing him of attempting to influence Justices Chris Jafta and Bess Nkabinde in a case concerning former President Jacob Zuma. In the 15 years since, there has been numerous litigations on the part of both JP Hlophe as well as the JSC. In April 2021, a tribunal inquiry found Hlophe guilty of gross misconduct, a decision upheld by the JSC (without the parliamentarians) in August 2021.

Naturally, more litigation followed. Hlophe challenged the JSC’s decision in the Johannesburg High Court, but a full bench of three senior judges slapped this down. Hlophe filed an appeal in the Supreme Court of Appeal (SCA) but did not proceed with it, pleading a lack of funds. The appeal lapsed. Meanwhile, President Ramaphosa, on the advice of the JSC, suspended him in December 2022.

While the process was snaking its way through the National Assembly (NA), Hlophe made a last ditch attempt to stop it. He filed an application for the Constitutional Court (CC) to declare parliament’s process ‘unconstitutional’ and for parliament to hold a fresh inquiry. Days later, he filed another application in the Western Cape High Court to stop parliament from proceeding, until the Constitutional Court application was resolved.

In the Constitutional Court application, Hlophe argued that Parliament did not have the appropriate procedures or rules in place to guarantee a fair or lawful removal process as per section 177(1)(b) of the Constitution. Further, that both the vote and adoption to remove him from office will be unconstitutional, and a gross infringement on the principle of separation of powers and judicial independence. Parliament denied this, arguing that the rules are sufficient.

On the morning of the vote, Judge Sulette Potterill  struck Hlophe’s urgent application off the court roll, clearing the path for the vote to go ahead in the National Assembly.

The National Assembly will also vote on Judge Motata’s impeachment at the same time. Motata’s case arose from a 2007 incident where he crashed his car while driving drunk. Following his prosecution and conviction for drunk driving, two complaints were filed against him: (1) for knowingly raising a dishonest defense in his criminal trial; (2) for racist comments he made while intoxicated, after his accident.

Again, following delays caused by litigation, the Judicial Conduct Tribunal found Motata’s conduct amounted to gross misconduct in 2018 and recommended that the JSC invoke s177(1)(a) of the Constitution, which is  impeachment and removal from office. The JSC rejected this recommendation and found Judge Motata guilty of misconduct rather than gross misconduct and ordered him to pay a fine.

Civil society organisation Freedom Under Law (FUL) successfully challenged the JSC decision as irrational. After failing at the high court, FUL eventually convinced the Supreme Court of Appeal (SCA), which set aside the JSC’s finding. The court referred the matter back to the JSC to initiate impeachment proceedings against Motata. Both Hlophe and Motata’s cases were simultaneously dealt with by the National Assembly’s Justice and Correctional Services Committee, which in November 2023 recommended that both judges’ cases be put to a vote in the full National Assembly.

Should the vote succeed and the National Assembly take a resolution to remove both judges from office, the President must carry out the decision and set a date for both judges to officially lose their status and title as judges, and all the benefits that come with that position.

One of the key constitutional safeguards of judicial independence is individual judges’ strong security of tenure, underpinned by protection from arbitrary removal from office. However, just like constitutional principles, judicial independence is not a limitless entitlement. This protection is checked and carefully balanced with judicial accountability, which is the guiding principle for the judicial misconduct process. The JSC is the primary enforcer of the Code of Judicial Conduct through the judicial misconduct process. In extreme cases of judicial misconduct and abuse of power, the JSC calls on the National Assembly (NA) to assist in this oversight role through the impeachment vote and removal from office.

Parliament’s impeachment vote is not only historically significant, but is also symbolically important as enforcing both judicial accountability and protecting judicial integrity.

For this reason, it is vital that a functional judicial misconduct process is in place. Importantly, such a process must be marked by efficiency. The length of time that both the Hlophe and Motata cases have taken to resolve, speaks to the failure of the misconduct process. A crisis only underscored by the sheer volume of misconduct cases still pending resolution. 

No doubt, Parliament’s impeachment vote today is historically significant. But it is also symbolically important as enforcing both judicial accountability and protecting judicial integrity. In many ways, this is a low moment for the South African judiciary. However, it is also a vindication of South Africa’s strong constitutional mechanisms at play, a fact we should all celebrate.

Genevieve Maujean and Dimakatso Nchodu are researchers at the Judges Matter project of the Democratic Governance and Rights Unit at the Faculty of Law, University of Cape Town.