The Johannesburg High Court on Monday heard Freedom Under Law’s (FUL’s) application to join embattled Western Cape Judge President John Hlophe’s case against the Judicial Service Commission (JSC).
In a virtual hearing on Monday, the court’s full bench heard arguments from Hlophe’s counsel, advocate Lihle Sidaki, as well as advocate Max du Plessis, who represented non-profit organisation (NPO) FUL.
During the proceedings, Sidaki opposed FUL’s intervention, arguing that the NPO did not set out a proper case on whether it is liable to participate in the litigation.
Sidaki said it was clear that FUL’s intervention was to argue that Hlophe should be impeached and that the judge was guilty of gross misconduct.
“It is apparent that the kernel of FUL’s intended participation in this matter is to oppose, as a respondent, judge president Hlophe’s application to review the JSC decision and to vigorously defend the majority decision of the JSC.
“FUL’s interest is clearly that judge president Hlophe must be found guilty and impeached, whatever the circumstances,” Sidaki told the court.
The advocate further said FUL and its chairperson, retired Constitutional Court (ConCourt) justice Johann Kriegler, were pursuing a vendetta against Hlophe.
He also dismissed FUL’s founding affidavit that it sought to intervene as it was in the public’s interest in terms of section 38 of the Constitution.
Du Plessis, meanwhile, argued it would be in the interest of justice that FUL’s intervention be admitted in the litigation by the court.
“It is important that FUL is able to ensure the matter reaches finality expeditiously and properly. It is in the interests of justice this matter is brought to finality,” he submitted.
The advocate added: “The subject matter of this case goes to the very heart of our constitutional democracy. It is the paragon case, or a paragon case of public importance and interests, and what the Constitutional Court has described as constitutional litigation.”
The high court’s full bench – consisting of Gauteng judges Aubrey Ledwaba, Roland Sutherland and Margaret Victor – will rule within 10 days on the FUL’s application to join as a respondent in case.
Hlophe had filed a rule-30 application with the Johannesburg High Court last week in bid to oppose FUL’s application.
In September, the NPO signalled its intention to intervene in the matter.
This was shortly after Hlophe filed an application to review a finding that he was guilty of impeachable conduct.
In August, the JSC found that Hlophe had improperly tried to cajole two ConCourt justices to violate their oaths of office by ruling in favour of former president Jacob Zuma.
The matter related to the validity of searches during the arms deal investigation of Zuma and French arms company Thales’ local subsidiary, Thint, in 2008.
The commission concluded that Hlophe was guilty of gross misconduct based on the Judicial Conduct Tribunal’s findings.
Hlophe seeks to have these findings set aside by the high court.
The judge also wants the high court to rule that the JSC meeting – in which the majority voted that he should be impeached – be declared unlawful as the commission “failed to perform its constitutional obligations”.
At this stage, the JSC has elected not to recommend Hlophe’s suspension to President Cyril Ramaphosa.
While the JSC’s report was sent to Parliament to deal with Hlophe’s impeachment, it is yet to schedule any committee meeting to deal with the matter.
National Assembly Speaker Nosiviwe Mapisa-Nqakula had previously referred the JSC’s report to the portfolio committee on justice and correctional services.
The committee was tasked with reviewing and considering the procedural aspects of Hlophe’s impeachment.
During a programming committee meeting last Tuesday, National Assembly secretary Masibulele Xaso suggested that a secret ballot may be held for the impeachment proceedings.
Should Hlophe be impeached, he will be the first judge since the advent of democracy to be removed from office.