By Lehlohonolo Lehana.
Portfolio Committee on Justice and Correctional Services has recommend the removal of both Western Cape Judge President John Hlophe and retired Gauteng Judge Nkola Motata.
The committee met on Wednesday to decide the fate of the two judges, both of whom were found guilty of gross misconduct by the Judicial Service Commission (JSC).
The two judges were requested to make written submissions on “extenuating circumstances” they would like parliament to consider before concluding their matters.
Motata had previously been cleared of gross misconduct by the JSC despite a finding that he had committed gross misconduct by the Judicial Conduct Tribunal.
The Supreme Court of Appeal (SCA), however, set aside the JSC’s decision in June, paving the way for his impeachment by Parliament.
The judge’s guilty finding related to a January 2007 incident, where Motata crashed his car into the wall of a Hurlingham home and then made racist utterances to the homeowner, Richard Baird.
In his submission, Motata raised an issue of jurisdiction and double jeopardy. His contention was that the Judicial Services Commission (JSC) had not referred the matter to the speaker of the National Assembly or the assembly itself, it just took a decision of the supreme court of appeal and sent that to the speaker.
On double jeopardy, Motata contended that the JSC found him guilty of misconduct and fined him R1.1m, which he paid. He said if parliament continues with its process, it would be jeopardy on his side.
Committee chair Bulelani Magwanishe said after receiving Motata’s submission, the committee contacted the JSC, and chief justice Raymond Zondo convened “a small JSC”, that is the JSC without members of parliament last Friday. A resolution was adopted and referred to National Assembly speaker Nosiviwe Mapisa-Nqakula, who in turn referred it to the committee.
The recommendation for Hlophe’s removal came after the JSC found the judge had acted improperly when he attempted to sway two Constitutional Court (ConCourt) justices in favour of former president Jacob Zuma in his 2008 bid to overturn warrants used to seize 93 000 pages of corruption trial evidence against him.
Hlophe made a 244-page submission in which he charged that the process was not ready for a decision as he was still appealing.
“We have set out in some detail … the basis upon which we respectfully contend that the 2021 JSC decision of gross misconduct is anything but ‘already proven’ and why the ‘merit issues’ relating to the ‘JSC process’ cannot be said to be ‘already settled’.
“The merit issues remain the subject of a pending judicial review appeal process, which has been hamstrung by the state’s failure to fund Hlophe’s legal representation and related legal costs, including costs for the court appeal record,” said Hlophe through his lawyers.
They also urged the committee to inquire why funding for Hlophe’s appeal to the SCA was withdrawn without notice or reasons given.
MPs, based on legal advice, rejected Hlophe’s assertions and request for it to hear him and his lawyers, saying theirs was not to conduct an inquiry and that the written submissions made were sufficient.
They agreed to recommend to the house that he be removed.
Section 177 of the constitution provides for a judge to be removed from office only if the JSC finds the justice suffers from an incapacity, is grossly incompetent or guilty of gross misconduct.