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Legal analysts weigh in on Hlophe’s court challenge to stop his suspension by President Ramaphosa

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Some legal analysts have weighed in on Judge President of the Western Cape High Court Division John Hlophe’s urgent review application in the High Court in Johannesburg to stop President Cyril Ramaphosa from suspending him.

In court papers, Hlophe says his review application is based on the principle of legality and the provisions of Section 6 of the Administrative Justice Act. This after the Judicial Service Commission (JSC) recommended that Hlophe to be suspended pending the outcome of his possible impeachment by the National Assembly.

The JSC resolved last month to advise President Ramaphosa to suspend Hlophe. This comes after he was found guilty of gross misconduct by the Judicial Conduct Tribunal for allegedly trying to  influence two former Constitutional Court Justices, Bess Nkabinde and Chris Jafta in a matter involving then ANC President Jacob Zuma in 2008.

In his 328 page court papers, Hlophe says the JSC acted unlawfully to advise that the President suspend him when there is a pending matter at the Supreme Court of Appeal. He also says the JSC’s advice for his suspension, based on the misconduct findings which are subject to an appeal at the SCA, is unreasonable and irrational.

Director for the Institute of Accountability in Southern Africa Paul Hoffman disagrees with Hlophe.

“He seems to have misconstrued the nature of the suspension itself. He is not being punished by being suspended. The suspension is of a precautionary nature and it is put in place in order to preserve the dignity and efficacy of the Judiciary itself. That is something that the courts are unlikely to permit, in that the efficacy and dignity of the courts not served by allowing Judge Hlophe to continue in office at a time when the Judicial Service Commission has though its procedures found him to be unfit for office”, say Hoffman.

Research and Advocacy Officer at Judges Matter Mbekezeli Benjamin says the prospects of Hlophe’s court application do not seem strong..

“ The reason being that the JSC had previously undertaken that they would not place him on suspension in 2012, that is well before the Judicial Conduct Tribunal had found him guilty of misconduct. Even after the JSC had found Judge Hlophe guilty of gross misconduct in August of 2021, the JSC gave an undertaking that they will not proceed with his suspension until his High Court review was heard. The High Court review was heard and a decision came out in May 2022, which meant that the JSC could then proceed with the suspension. Therefore, Judge Hlophe’s argument that the JSC could not act while his court review is on appeal seems to misunderstand the law and is unlikely to succeed”

JSC and Hlophe must bring 14 year battle to finality

Benjamin says Judges Matter wants to see both the JSC and Hlophe bring the matter to finality.

“We are concerned about this court applications  back and forth on this issue. It has dragged on for well over 14 years now. And it has done damage to the reputation of the Judiciary. In as much as Judge Hlophe has every right to challenge whichever decision in terms of the law, but we do call on both the JSC and Judge Hlophe to resolve this matter resolve this matter.”

Hlophe has cited 11 respondents in the review application. Apart from citing the JSC, President Cyril Ramaphosa, Justice and Correctional Services Minister Ronald Lamola and National Assembly Speaker Nosiviwe Mapisa-Nqakula as the first four respondents, Hlophe has also cited six retired Constitutional Court justices and Freedom Under Law.

Justices Dikgang Moseneke, Yvonne Mokgoro, Catherine O’ Regan, Albi Sachs, Johan van Der Westhuizen and Zak Yacoob are the fifth to tenth respondents.

Hlope says the six justices were complainants in the matter. The eleventh respondent is Freedom Under law.

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