MANDY WIENER: Impeachment of judges reminder that independence of judiciary is sacrosanct
Judges must be beyond reproach. Their independence and credibility are sacrosanct.
Retired Gauteng High Court Judge Nkola Motata & Judge President John Hlophe. Picture credit: Judges Matter website
It was a process that took sixteen years, a myriad of court applications and relentless legal challenges by civil society organisations that ultimately ended in a vote in Cape Town’s City Hall on Wednesday evening.
The former Western Cape Judge President John Hlophe was impeached. Retired Gauteng High Court Judge Nkola Motata was too. It was a historical moment in our democracy. The last time a judge was impeached in South Africa was in 1910.
In 2007, Motata drunkenly crashed his car into a wall of a residence in Johannesburg and then made racist remarks towards the homeowner Richard Baird. In 2008, Hlophe improperly approached Constitutional Court justices to influence them in matters relating to former President Jacob Zuma.
While the process has been extensive, lengthy, and unwieldy, it has ultimately ended in two judges being held accountable for their actions. There are lessons to be learnt about how the entire Judicial Service Commission process unfolded and why exactly it all took so long.
But in the end, it reached a conclusion which reminds us that judges must be beyond reproach and that their independence and credibility are sacrosanct.
“A judge bears the responsibility of upholding the independence, integrity, and authority of the court. When the very same judges are found wanting, how do we then hold them accountable? Who judges the judges?” said ANC MP Bulelani Magwanishe at the impeachment vote.
In a functional constitutional democracy, we must ensure that our judiciary stands firm and true and has to be protected. This has been evidenced by the work done by civil society organisations such as Freedom Under Law, Casac and the Helen Suzman Foundation in ensuring that proper legal processes were followed in holding transgressing judges to account.
FUL’s Chris Oxtoby told me on The Midday Report this week that even though it was a long and cumbersome process, it ultimately reached the proper conclusion.
“I tend to take a glass-half-full approach to that. Albeit it has taken quite long we have got to a point where judges are being held accountable for committing serious misconduct. There is definitely a basis to say that kind of conduct is not what we expect from our judges, bearing in mind the power they have and the position they have in our society. So, the fact that we have finally got to a stage where they are being held accountable and are being removed from office because of that, is a really important step to ensure the judiciary does have credibility. That if they do abuse those positions there are actually going to be real consequences and they will ultimately lose those positions.”
There is a counterargument from Hlophe’s supporters, largely quartered amongst the EFF, that the former Judge President has been targeted as part of a campaign against Black excellence. EFF MP Advocate Busisiwe Mkhwebane said that Hlophe’s only sin was ‘discussing law with his colleagues’.
There have also been repeated concerns raised about the politicisation of the Judicial Services Commission and appointments to the bench.
This has been amplified by this week’s release of the ANC’s cadre deployment records.
News24 is reporting that the records show that the party tried to interfere with the appointment of judges and sought to undermine the independence of the Chief Justice.
“Minutes from a deployment committee meeting show the party said the judiciary had too much power and, in a letter, former ANC deputy secretary-general Jessie Duarte wanted the justice minister to ‘address’ the ‘influential role’ of the Chief Justice at the Judicial Service Commission,” News24 reported.
This is in stark contrast to what President Cyril Ramaphosa told the Zondo Commission about the appointment of judges. He argued that while the ANC can’t appoint judges, it has pushed for transformation.
"I can say, as a deployee of the ANC, the fact that today we have so many female judicial officers is because of the ANC's insistence,” said Ramaphosa.
The doctrine of the separation of powers ensures checks and balances so no arm of government is more powerful than another. There also cannot be interference by one arm of the state into another.
The impeachment of Hlophe and Motata this week is a reminder that judges must act in a manner expected of their office and position. It is a matter on which we cannot afford to compromise.