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Judge Hlophe to challenge high court decision

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The Judge President’s application to refer the matter to the National Assembly to re-hear the question of gross misconduct was also dismissed.

Judge President John Hlophe.

JUDGE President John Hlophe’s application to set aside the decision of the Judicial Service Commission (JSC) – in which the JSC resolved that he had committed gross misconduct and recommended an impeachment – has been dismissed in the Gauteng High Court.

The Judge President’s application to refer the matter to the National Assembly to re-hear the question of gross misconduct was also dismissed.

Hlophe’s attorney, Barnabus Xulu, said they will appeal this decision “for the public’s confidence in the judiciary”.

“Fundamentally, the judgment does not reflect the established jurisprudence on the constitutional and legal issues raised by the parties, and the public is entitled to a judgment that accurately interprets the law, faithfully adheres to the established constitutional principles including judicial precedence and the correct approach to interpreting the Constitution.

“As this case is important for the public’s confidence in the judiciary and the rule of law, and we have accordingly received instructions to take the matter on appeal,” said Xulu.

The impeachment recommendation follows the Judicial Conduct Tribunal’s finding that Hlophe was found guilty of trying to influence the outcome of former president Jacob Zuma’s corruption charges in 2008.

The tribunal’s report stated that Hlophe breached sections of the Constitution when he tried to influence two justices of the Constitutional Court where he had attempted to influence Justice Chris Jafta and Justice Bess Nkabinde to rule in a particular manner in a pending judgment between Zuma and the National Prosecuting Authority.

JP Hlophe risks becoming the first judge to be removed from office since 1994.

Reacting to the judgment, Freedom Under Law (FUL), also as one of the respondents in the matter, welcomed the decision.

“The court rejected each of the Judge President’s numerous contentions aimed at delaying his impeachment, concluding that the JSC had correctly found him guilty … It is clearly in the interests of justice and the rule of law that this impeachment process be undertaken without any further delay,” said FUL.

“Nearly fourteen years have passed since Judge Hlophe’s furtive attempts to pervert the course of criminal justice against Mr Zuma…We will oppose any further attempts by or on behalf of Judge Hlophe to frustrate or retard the impeachment proceedings against him.”

Full bench judges Acting Judge President Aubrey Ledwaba, Deputy Judge President Roland Sutherland and Judge Margaret Victor, said: “In support of his contention that the Court is empowered to order the National Assembly to hold a fresh enquiry, Hlophe JP asserts that the Speaker’s affidavit refers to a ‘decision’ that the National Assembly must make. He therefore contends that because the National Assembly is making a decision, it should conduct its own inquiry into whether or not he has committed gross misconduct and should be removed, otherwise it would be a rubber-stamping exercise. This argument is misdirected. When Parliament passes a resolution on the matter, it does not have to re-hear the matter. It would have sufficient documentation before it to make a decision …

“As a senior Judge President, Hlophe should have been sensitive to the rigid north star for judges performing their duties impartially and without fear, favour or prejudice. However, taking all this into account, his litigation mission in this matter was really aimed at avoiding the far-reaching and devastating consequences to him personally, should he be impeached,” judgment read.

Parliamentary spokesperson Moloto Mothapo declined to comment.

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