Judge Hlophe's hand-picked representative from WC Bench to vote on tribunal impeachment verdict

Judicial Service Commission spokesperson Doris Tshepe confirmed to Daily Maverick that Judge Monde Ishmael Samela “represented the Western Cape Division of the High Court at the JSC meeting on 4 June. The JSC had no role in the determination of who attends on behalf of the division”.

Emails to the Judge President as well as his legal advisor, Barnabas Xulu, with regard to Samela’s presence at the JSC were not responded to at the time of publication.

Hlophe’s suspension was set to be decided on Friday, 4 June, by a “small” JSC of 14 (minus National Assembly and National Council of Provinces members) but the final verdict has been postponed to 30 July due to a “deadlock”.

The failure by the JSC to explain the delay has been slammed by Lawson Naidoo of the Council for the Advancement of the SA Constitution (Casac) as “an affront to the foundational constitutional principles of accountability, responsiveness and openness.”

Freedom Under Law (Ful) has repeatedly urged the JSC to recommend to the President the suspension of Hlophe pending the judicial inquiry.

The matter has dragged on for 13 years and has resulted in very public and acrimonious exchanges between the country’s most senior judges, plunging the country’s judiciary into crisis.

Said Tribunal chair, Judge Joop Labuschagne: 

“We consider it our duty to vindicate the integrity of the Justices of the Constitutional Court, in particular Chief Justice Langa, Deputy Chief Justice Moseneke, Justice [Bess] Nkabinde and Justice [Chris] Jafta, whose integrity has been called into question by Judge President Hlophe’s unfounded and scurrilous attacks. 

“They acted with honour to protect the institutional integrity of the apex court of our Republic.” 

On 4 June the commission was unable to reach consensus, despite the scathing findings, on whether Hlophe should face impeachment for attempting to improperly influence Constitutional Court Judges Nkabinde and Jafta in 2008. 

Hlophe will continue to serve as Judge President until 30 July — and perhaps even beyond.

It has come to light that Hlophe dispatched Samela, the 14th most senior judge in the Western Cape division, to the JSC to vote on a matter in which the Judge President himself is the accused.

This places any decision taken by the JSC in jeopardy of being taken on review as the legal rule against bias, or Nemo judex in causa sua — “no one should be a judge in their own cause”, would apply.

Hlophe should not be picking and choosing who sits in judgement of him.

Daily Maverick has reliably learned that there was a “split” in the JSC vote, which means some members support Hlophe and intend to argue in his case.

Each “side” has been requested to deliver written legal arguments and it is these submissions that will be presented and voted on on 30 July.

While legal experts all agree that Hlophe’s hand in the selection of a judge to represent the division at the JSC, which is set to vote on the matter, would make the decision taken “reviewable” but no one is quite sure “by whom?” 

Hlophe strikes again. DM