JSC minority decision on Hlophe rejects his gross misconduct finding

Doubt was cast on the integrity of the evidence given by the two judges of two ConCourt who filed the complaint about Western Cape Judge President John Hlophe’s attempt to interfere with the Zuma-Thint case.

Western Cape Judge President John Hlophe. Picture: www.judiciary.org.za

JOHANNESBURG – A minority decision of the Judicial Service Commission (JSC) on the impeachment referral of Western Cape Judge President John Hlophe has rejected findings that he is guilty of gross misconduct.

In the document issued by the JSC on Thursday night, doubt was cast on the integrity of the evidence given by the two judges of the Constitutional Court who filed the complaint about Hlophe’s attempt to interfere with a case regarding former President Jacob Zuma and arms manufacturer, Thint.

The majority decision recommended that the National Assembly should initiate impeachment processes against Hlope, as prescribed in Section 177 of the Constitution, which deals with the removal of judges.

READ: Judge Hlope's fate in the hands of MPs after JSC uphold impeachment recommendation

The minority decision upholds the judge president’s testimony that he was not aware of the rule that prohibited him from discussing the legal principles involved in matters pending before other judges.

It also argues that the rule only came into effect in 2012, four years after the events which gave rise to the complaint against Hlophe.

The majority decision insisted that, given his experience on the bench and in academics, Hlophe knew what both the Constitution and the code of conduct said.

The minority’s motivation also included that the Judicial Conduct Tribunal and some members of the JSC provided muddled reasoning by focusing on Hlophe’s conduct after the complaint was lodged and his line of defence.

It also said that the casual nature with which Hlophe discussed the Zuma-Thint case – which was a serious matter with the justices – did not mean that he rose to the level of misconduct and instead believed Hlophe’s version that the subject came about as a natural flow of conversation.

The commission members in the minority further stated that their assessment of the probabilities showed that finding the judge president guilty of gross misconduct was unsustainable.

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