The Portfolio Committee on Justice and Correctional Services has resolved to recommend that the National Assembly (NA) remove suspended Western Cape Judge President John Hlophe and retired Judge Nkola Motata from office.

The resolution follows the decision by most members serving on the committee that the findings of gross misconduct against both judges were procedurally fair and warrants removal from office.

The African National Congress and Democratic Alliance agreed that both judges, who have been found guilty of gross misconduct by the Judicial Service Commission (JSC), should be removed. The Economic Freedom Fighters’ Adv Busisiwe Mkhwebane, however, vehemently opposed their removal.

Committee Chairperson Mr Bulelani Magwanishe said the committee’s processes regarding both judges were in terms of Section 177 of the Constitution following referrals of findings of gross misconduct by the JSC to the NA for further consideration of possible removal.

The committee previously heard from Dr Barbara Loots of Parliament’s Constitutional and Legal Services regarding the process followed so far and the committee’s role. The committee heard that its role is limited and does not include conducting an enquiry or repeating the work of the JSC. Parliament’s responsibility is to deliberate on the consequences of the JSC findings and indicate whether removal should follow.

The committee gave both judges an opportunity to provide extenuating circumstances to ensure a fair process for the purposes of its deliberations. Mr Magwanishe said both judges took up the opportunity to do so comprehensively. “An extension was granted when a request for more time was made,” said Mr Magwanishe.

A defence “lacking integrity”

The JSC findings relate to two complaints against Judge Motata. One concerned his defence in his criminal trial and the other was a charge of racism. In the first matter, when conducting a trial, the accused’s lawyer is obliged to present a defence based on instructions received from the accused. In Judge Motata’s case, he instructed his lawyer to inform the court that he was not drunk at the scene of a motor accident. The tribunal of the JSC thereafter concluded that Judge Motata had conducted a defence that he knew lacked integrity.

On the complaint of racism, the tribunal held that the Judge’s conduct and remarks at the scene of the car accident were racist and thus impinged on and prejudiced the impartiality and dignity of the courts. The tribunal’s decision of gross misconduct was later overturned by the JSC to one of misconduct.

Judge Motata indicated to the committee that he was found guilty of misconduct only by the JSC and consequently fined R1 152 650.40, which he has already paid. He argued no JSC decision of gross misconduct was properly referred to the committee. In correspondence to the committee, the “small” JSC (which excludes Members of Parliament serving on the JSC) confirmed the position held by the committee, namely that the JSC’s decision of misconduct was set aside and replaced with the Supreme Court of Appeal’s (SCA) of gross misconduct, as per the initial finding of the JSC’s Judicial Conduct Tribunal. The JSC indicated that the issue of the fine already paid is an issue to be addressed by the JSC and Judge Motata and doesn’t stand to influence the current parliamentary process.

Allegation of improper influence 

Judge President Hlophe, whose JSC finding of gross misconduct relates to a complaint of attempted improper influence brought by two Justices of the Constitutional Court, indicated that there was alleged undue political pressure to remove him from office. Those who dislike him apparently actively pursued the JSC process until it amounted to a finding of gross misconduct. He further claimed it was in the public interest for the committee not to proceed with its deliberations on possible removal.

He further noted that he is currently the most senior judge (serving 28 years), did so until his December 2022 suspension and has 23 years of service as Judge President. He is a well-respected academic having published and presented numerous papers and chapters in books nationally and internationally. He served as a member of the South African Law Commission, delivered many reported judgments, some which were referred to with authority in SCA and Constitutional Court judgments and is still held in high esteem by many jurists and scholars.

No legal impediment

Committee member Mr Werner Horn said MPs all swore allegiance to the Constitution, which includes non-racialism. He said that Adv Mkhwebane’s suggestion that an African judge must be treated differently, flies in the face of that. Another member, Ms Nomathemba Maseko-Jele, while expressing sympathy with Judge Motata's family, said ubuntu cannot be used “loosely”. She said they had looked at the facts and the circumstances of the matter. The decision was also supported by committee member Mr Steve Swart. Adv Mkhwebane pleaded with the committee to come to a different conclusion.

Committee member Mr Qubudile Dyantyi was also not persuaded by this argument and said there was no legal impediment for the committee to continue with its work. Judge Hlophe was free to attempt to obtain an interdict but, in the meantime, Parliament was constitutionally obligated to deal with his matter, which has dragged on for 15 years already.

The committee will recommend to the NA that both the judges be removed. If such a motion is adopted with a two-thirds majority, the President must then remove the judges.

Rajaa Azzakani

22 November 2023