Judge Hlophe’s application to interdict National Assembly struck off the roll

21 February 2024

The Parliament of South Africa notes the Western Cape High Court's decision to strike off the roll Judge John Hlophe's application, which sought to interdict the National Assembly from considering the Portfolio Committee on Justice and Correctional Services' report recommending his dismissal.
 
Judge Hlophe urgently petitioned the High Court to stop the Speaker and/or the National Assembly (NA) from voting on his removal under Section 177 of the Constitution, pending his direct access application to the Constitutional Court, wherein he seeks an order among others, declaring that the NA failed in its constitutional duty to pass rules for the impeachment or removal of judges.
 
Before the High Court, Hlophe JP argued that the resolution by the NA to proceed with a vote on the recommendation by the Portfolio Committee on Justice to remove him from office despite his CC application was unconstitutional and violated judicial independence and the doctrine of the separation of powers. He argued that the imminent vote by the NA did not accord with the constitutional standard set out in section 165 of the Constitution, which is to protect and assist the courts to ensure their independence, partiality, and dignity.
 
With regard to the urgent interdict, the Speaker argued that it is trite that the courts uphold the principle of the separation of powers which calls for courts to interfere in the business of another arm of government only in exceptional circumstances, and that Hlophe JP’s urgent application did not warrant such interference. The Speaker further argued that the interdict application was not urgent, and that if it was, such urgency was self-created, as Judge Hlophe became aware as early as December 2023 that the NA had been presented with the report by the PC on Justice on his impeachment, and that it would be scheduled for a vote in the new year.
 
The high court has vindicated the NA and confirmed that the House has a duty to perform its functions unless ordered otherwise by a court of law. The court further confirmed that it would be undesirable to stop a constitutional process and interfere with the NA processes in these circumstances. The court also confirmed that Judge Hlophe’s application did not meet the requirements of an urgent interdict and that as someone who is not an ordinary litigant and who has presided over many urgent applications in his career, understands the legal requirements to be met for an urgent interdict.
 
On these grounds, the urgent interdict was struck off the roll, with each party paying its own costs.
 
Parliament continues to oppose Judge Hlophe’s Constitutional Court application and will be filing its answering affidavit during the course of this week.
 
The National Assembly will proceed with its consideration of the reports on both Judge Motata and Hlophe JP today. The Judges were found guilty of gross misconduct by the JSC, with Judge Hlophe’s case dating back to 2008 when he was accused by Constitutional Court Justices of attempting to influence that court’s judgement in the Thint/Zuma matters involving former President Jacob Zuma. Retired Judge Motata, on the other hand, was convicted of drunk driving in 2009.

Issued by Moloto Mothapo, Media Officer, Parliament, 21 February 2024