Parliament has opposed suspended Western Cape Judge President John Hlophe’s urgent application in the High Court to interdict the national legislature from going ahead with the impeachment pending his application.
Parliament is due to consider the report by the justice committee to remove Hlophe and retired Gauteng Judge Nkola Motata.
The sitting is scheduled for Wednesday.
But Hlophe wants Parliament to halt the process pending his application for direct access to the Constitutional Court.
Parliament said it was operating within the framework of the law by conducting an impeachment process against Hlophe and Motata.
The national legislature is set to meet on Wednesday to vote on the motion to remove Hlophe and Motata from office.
The House will require a two-thirds majority for the removal of each judge.
Both Hlophe and Motata were found guilty of gross misconduct by the Judicial Service Commission (JSC) and the matter was referred to Parliament for impeachment.
In its report to the National Assembly last year, the portfolio committee on justice and correctional service found both Hlophe and Motata guilty of gross misconduct.
But last Tuesday, Hlophe went to the Western Cape High Court to interdict Parliament from going ahead with the process on Wednesday pending his application for direct access to the apex court.
Parliament said on Sunday it has filed its papers opposing the application by Hlophe in the High Court.
It said it has made it clear that the current laws allow it to go ahead with the impeachment of Hlophe and Motata.
“In his application, Judge Hlophe argues that parliament has failed to adopt the necessary rules for the removal of judges in terms of section 177 of the Constitution,” Parliament said.
“Judge Hlophe incorrectly argues that because the National Assembly does not have such rules-which he argues will guarantee a lawful and fair process that is consistent with parliament’s constitutional obligations under section 165 of the constitution-the vote and adoption of a resolution on the motion to remove him, will be unconstitutional and a direct violation of judicial independence and separation of powers.”
The national legislature said its decision to go ahead with the removal of Hlophe and Motata on Wednesday was correct.
There was no basis Hlophe’s application that warrants Parliament to halt the process.
All the necessary processes were followed when the justice and correctional services committee adopted its report and made recommendations to the National Assembly.
“In its replying affidavit, parliament also argues that that it has no constitutional or statutory power to duplicate the work of the JSC by conducting another investigation into the conduct of Western Cape Judge President John Hlophe,” Parliament said.
“Parliament believes that the JSC, being dominated by lawyers with the necessary expertise, is the correct body to make the necessary finding in terms of section 177(1)(a) of the Constitution,” it said.
“This position was confirmed by the High Court in its 2022 judgment of Hlophe vs JSC and others, where Judge Hlophe called for the duplication of the investigation phase without success.”
The justice committee met late last year after it received the JSC report that both Hlophe and Motata be impeached.
The committee asked the two judges to provide extenuating circumstances why they should not be impeached.
At the end of November the committee found there were no extenuating circumstances that warrant any decision other than to recommend to the national assembly for Hlophe and Motata to be removed from office.
Economic Freedom Fighters’ (EFF) member of Parliament Busisiwe Mkhwebane objected to the report of the committee calling for the removal of the two judges.
When the committee began its process it said it was the first time in the legal history of South Africa for a judge to be impeached.
Motata was found guilty by a court after he crashed his luxury car on a boundary wall of a house in Johannesburg. Motata was drunk at the time.
Initially. the JSC fined him, but Freedom Under Law appealed in the Supreme Court of Appeal and the court said he must be impeached.
The judge retired in 2017.
Hlophe was found guilty of gross misconduct after the JSC found that he tried to influence two judges of the Constitutional Court in the case involving former president Jacob Zuma.
IOL Politics