Parliament has failed to adopt rules for the impeachment of a judicial officer, and its failure to do so has resulted in a flawed constitutional process for the removal of Western Cape Judge President John Hlophe.
This is among the submissions Judge Hlophe made in his urgent application to interdict his planned impeachment scheduled in Parliament for next week.
The suspended judge launched his application in the Western Cape High Court after Parliament decided to impeach him along with Judge Nkola Motata, following the justice and correctional service portfolio’s recommendation last year.
Their planned impeachment will take place immediately after Finance Minister Enoch Godongwana has tabled the 2024 Budget in the Cape Town City Hall.
The urgent application comes amid another bid Judge Hlophe launched in the Constitutional Court for direct access, wherein he is raising issues about the processes followed in deciding to recommend to vote on his removal from office.
Cited as respondents are National Assembly Speaker Nosiviwe MapisaNqakula, portfolio committee chairperson Bulelani Magwanishe, President Cyril Ramaphosa, Justice Minister Ronald Lamola, the Judicial Services Commission and all parties represented in Parliament.
Those wishing to oppose the application had until Thursday to file notice of intention to oppose.
In his papers, Judge Hlophe said the matter was urgent for an order that pending an outcome of his application for direct access to the Constitutional Court, Mapisa-Nqakula and Magwanishe or the National Assembly be interdicted from conducting an impeachment vote for his removal from judicial office.
“The matter is urgent because despite the pending application for direct access to the Constitutional Court, in which I seek various orders, the main being an order declaring that Parliament has failed to adopt the necessary rules for the removal of judges in terms of section 177 of the Constitution.”
He also said Mapisa-Nqakula has announced that unless he obtained an interdict against the impeachment vote, the National Assembly will proceed to vote to adopt a resolution for his removal from office.
“Such a resolution and vote, done outside any rules of the National Assembly, guaranteeing lawful and fair process that is consistent with Parliament’s constitutional obligation under section 165 of the Constitution and the rights of judges to a fair and lawful process, is unconstitutional and a direct violation of judicial independence and separation of powers.”
Judge Hlophe said despite specifically asking Mapisa-Nqakula to provide him with impeachment rules governing the removal of judges adopted by Parliament, he was not provided such rules.
“I now know such rules do not exist and Parliament has never adopted rules for the removal of judges in terms of section 177 of the Constitution.”
He also said the process followed by Parliament, in which the recommendation for the adoption of a resolution for his removal from office was adopted through the portfolio committee, lacked legal attributes necessary for a fair and lawful adoption of a parliamentary vote for his removal.
Judge Hlophe said the portfolio committee did not conduct a lawful, independent and fair process.
“The committee did not independently consider whether the Judicial Services Commission’s findings against me accords with the law and Constitution. This was necessary and imperative. Instead, the approach of the committee was to consider itself legally bound by the findings of the Judicial Services Commission.”
Parliament spokesperson Moloto Mothapo did not respond to a request for comment by deadline on Thursday.
Freedom Under Law (FUL) CEO Judith February said: “We are drafting papers and have no comment before those have been filed.”
However, FUL senior researcher Chris Oxtoby told Newzroom Afrika the court application was something many would have anticipated that Judge Hlophe would turn to the courts with at some stage in the process.
“It has been characteristic, unfortunately, of this whole process that it has been litigated in courts at many stages,” Oxtoby said.
Cape Times