Section 177 Judge President Hlophe removal process: Parliamentary Legal Advisor briefing

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Justice and Correctional Services

09 September 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary


Judicial Services Commission Statement
Judicial Conduct Tribunal Statement

In a virtual meeting, the Committee received a legal briefing on the Section 177 process for the removal of a judge, in the context of the finding of gross misconduct against Judge President John Hlophe of the Western Cape High Court.

Parliamentary legal services reported that the removal of a judge from office was circumscribed by Section 177 of the Constitution. Following a finding of gross misconduct by the Judicial Service Commission, the President was permitted and required to remove a judge only if the National Assembly called for his removal by a resolution adopted with a supporting vote of at least two thirds of its members. The Committee’s limited role in this process was to do the background work for the National Assembly resolution, by considering and reporting to the House on the fairness of the process followed thus far. The Committee would not hold its own inquiry, examine the merits of the matter, or make its own finding on Judge President Hlophe’s conduct. It was therefore acting in an oversight role, and could determine its own process within the bounds of the normal parliamentary rules.

The Committee discussed the procedure it would follow given that this was the first time that Parliament would apply Section 177. Members agreed that the Committee should retain a narrow role and should not be seen to overstep its authority. They wondered whether Members who had previously filed unrelated complaints against Judge President Hlophe should withdraw from the process, to avoid the perception of bias. They also discussed who should participate in the Committee’s process. Was the Committee obliged to follow an adapted version of the process it used for the removal of magistrates? If so, did this imply that it had to meet with the chairperson of the Judicial Conduct Committee? Should the Committee extend Judge President Hlophe the opportunity to raise any complaints he had about the process followed by the Judicial Service Commission, or would doing so effectively reopen the initial inquiry?

The Committee decided that its next step would be to meet again with parliamentary legal services, in order to receive detailed answers to Members’ procedural questions and a briefing on the contents of the Judicial Service Commission report.


Meeting report

The Chairperson said that there was only one item on the agenda for the current meeting. The Committee would receive a briefing from parliamentary legal services on the Section 177 process for the removal of a judge. The context for the briefing was the finding by the Judicial Service Commission (JSC) of gross misconduct by Judge President John Hlophe of the Western Cape High Court.

Legal briefing: Section 177 process for removal of a judge

Dr Barbara Loots, Parliamentary Legal Adviser, Constitutional and Legal Services Office, briefed the Committee. The briefing would focus on Parliament’s role in the Section 177 process, rather than on the background and content of the JSC’s report in the Judge President Hlophe matter.

Constitutional framework

Dr Loots said that Section 177 of the Constitution prescribed the process for the removal of a judge. A judge could be removed only if:
- The JSC found that the judge suffered from an incapacity, was grossly incompetent, or was guilty of gross misconduct; and
- The National Assembly (NA) called for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.

In the Judge President Hlophe matter, the first step had already been completed – the JSC had made a finding of gross misconduct, which it had tabled in the NA through the Speaker. The matter had now been referred to the Committee, which, acting as an extension of the House, would do the “background work” for the NA resolution referred to in the second step.

If the resolution was adopted, the Constitution required the President to remove Judge President Hlophe from office.

Committee oversight approach

Dr Loots said that the Section 177 process differed from the processes set out by Section 89 and Section 194, in that, in this case, there was no need for Parliament to hold its own inquiry. One arm of government could not usurp the constitutional powers given to another arm, so the NA could not take on, duplicate, or undermine the powers and functions that had already been exercised by the JSC in its own inquiry. It was not for Parliament to re-examine the grounds for the JSC’s finding. The NA therefore had a very limited role in the process.

The Committee’s role was to consider – and report back to the House on – the fairness of the process that had been followed thus far, thus providing checks and balances on the JSC. Essentially, it had to ensure that all the boxes had been ticked in the JSC’s process. Its report to the NA would then inform the NA’s vote on the resolution to remove Judge President Hlophe – all decisions of the NA had to be rational.  

Because the Committee’s role was not to duplicate the inquiry but only to provide checks and balances – essentially, to fill its usual oversight role – there was no need for that role to be prescribed by specialised rules. The Committee could determine its own process, within the scope of the usual NA Rules and its usual powers and functions. It might even wish to follow an adapted version of the process it followed to remove magistrates.


Mr R Dyantyi (ANC) thanked Dr Loots for the concise briefing – the Committee was accustomed to receiving very long presentations. He intended to emulate her brevity. He would raise one question and one suggestion, both on procedural rather than substantive issues.

Mr Dyantyi asked whether the Speaker, and in turn the Committee, had received all the required documentation from the JSC. The Committee should embark on its process in the knowledge that there were no outstanding documents and that no administrative obstacles would arise, so that it could focus on considering the issues.

Dr Loots replied that she was aware of three documents that had been referred to and tabled at the NA. These were the Judicial Conduct Tribunal’s report and the majority and minority decisions of the JSC. She would leave it to the Committee secretariat to confirm whether those documents had been forwarded to the Committee.

Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, Constitutional and Legal Services Office, said that he was glad Mr Dyantyi had asked about documentation, because, as Dr Loots had mentioned earlier, Parliament’s role was not merely to “rubber-stamp” decisions. It had to satisfy itself that it had all the information it required. To his knowledge, the Committee had the referral from the acting Deputy Chief Justice, the majority judgement, the minority judgement, and the finding of the Judicial Conduct Committee (JCC). All were relevant to the final determination made by the JSC.  

Mr Dyantyi suggested that parliamentary legal services should brief the Committee on the JSC report. He knew that the parliamentary term ended the next day, but the Committee might want to consider meeting during the recess to receive such a briefing. The JSC report was the Committee’s starting point in this process. Hopefully, before that briefing, Members would receive and be able to read all the documentation. Then, upon receiving the briefing, the Committee would be in a position to begin deliberating and ultimately to submit its report to the NA.

Dr Loots replied that she had noted Mr Dyantyi’s request. Parliamentary legal services would study the report and other documents in order to assist the Committee with its deliberations.

Adv Njikela confirmed that parliamentary legal services would be available to summarise and brief the Committee on the findings. It would work with the Committee secretariat.

Adv S Swart (ACDP) thanked Dr Loots for the short presentation. He agreed with Mr Dyantyi that the Committee was at the beginning of the process. The Committee certainly would not get into any substantive deliberations in the current meeting – for now, the Committee had to discuss the process and get an understanding of Parliament’s role. This was important given that there was no legislation to set out in detail the process that Parliament should follow – the Committee was fulfilling an oversight function. He also agreed with Mr Dyantyi that it would be desirable to receive a legal briefing on the report, and that the Committee had to ensure it had all the requisite material. Before deliberating, the Committee had to ensure that it had all the material, that it had had time to go through the material, and that it had received a briefing from parliamentary legal services on the contents of the material.

Adv Swart said that Dr Loots had referred to a “box-ticking” process of oversight, whereby the Committee would focus on such concerns as fairness and rationality – similar to the process it followed for the removal of magistrates. In his understanding, and given the principle of the separation of powers, the Committee’s process would have a very limited scope – it would not engage in a full inquiry or review, because the JSC had already held such an inquiry. Was that an accurate characterisation of the basic process?

Dr Loots replied that, in talking about the Committee ticking boxes, she certainly had not meant that the Committee’s process would be random or superficial. She had meant that the Committee would provide checks and balances. The Committee would check that everything up to this point in the process had happened correctly, so that the NA could, as it saw fit, use the process as the basis for its ultimate resolution. The Committee would be checking, for example, that nobody had been wrongly denied the opportunity to provide information during the inquiry. But it would not “redo” the JSC’s work by looking at the merits of the matter and making its own finding. 

Adv Njikela said that, at this early stage of the process, parliamentary legal services sought to emphasise to the Committee that an inquiry had already been conducted. In terms of the Constitution, and in terms of the JSC Act, the JSC had sole authority to make a finding about Judge President Hlophe’s capacity, competence, and conduct. Parliament and the Committee were not to conduct a parallel inquiry. Members would recall that the Constitutional Court had in the past sought to clarify the principle of separation of powers. The Section 177 process contained three sequential steps: the JSC finding, the NA vote, and the President’s action. Within that process, each arm of government had to stay within its area of responsibility. And one area of responsibility had already been carried out and concluded: the first step, the finding by the Judge President’s peers in the judiciary. 

Mr W Horn (DA) thanked Dr Loots for the concise and clear briefing. He agreed with Dr Loots’s advice about the Committee’s very narrow role in the Section 177 process. He thought the challenge for the Committee would ultimately be to perform a balancing exercise. As Dr Loots had said, the NA should never merely “rubber stamp” decisions – but, in performing checks and balances, it also should avoid acting as a review body. The Committee would have to decide the best way forward, given these imperatives. It was the first time that Parliament would deal with such a matter. He did not think that it was necessary for specific rules to circumscribe the process, but, in the absence of such rules, the Committee had to be very careful to follow, and to be seen to follow, due process. Its process should have a very narrow scope.

Mr Horn wondered whether it was relevant that Parliament had established procedures for dealing with the removal of magistrates and with related reports from the Magistrates Commission (MC). Was Parliament obligated to replicate those procedures in dealing with this similar matter under Section 177? Of course, it would have to adjust the normal procedure somewhat to make it applicable in this specific context. But was it required to follow broadly the same process as it did for magistrates, and what risks did it face if it did not do so?

In particular, Mr Horn said that when the Committee dealt with the removal of magistrates, it was generally briefed on the MC’s report by the chairperson of the MC’s Ethics Committee. The Committee fulfilled its oversight function, and ensured that it and Parliament more broadly made an informed decision, by engaging with the chairperson and asking him specific questions. As a consequence of that established practice, was the Committee not obligated to act similarly in the Section 177 process? That is, would the Committee not have to invite the chairperson of the JSC’s JCC to brief it and engage with it? He was not necessarily opposed to having parliamentary legal services brief the Committee on the report, but he wanted to clarify the Committee’s obligations. If parliamentary legal services could not respond to his questions in the current meeting, it could advise the Committee later.

Dr Loots replied that parliamentary legal services would have to look more closely at the process the Committee usually followed in respect of magistrates. It had a high-level understanding of the process, but the legal advisers would liaise with the Committee secretariat to learn more about past practice. It would return to the Committee with a rough comparison between the magistrates process and the Section 177 process, and with some indication of the possible risks.

Adv Njikela repeated that the Committee’s job was not to run a parallel process inquiring into Judge President Hlophe’s conduct. The responsibility for making such an inquiry lay with, and had already been fulfilled by, the JSC. The Committee might want to seek clarifications, but the Committee had to carefully consider the limits placed on each arm of government.

Ms N Maseko-Jele (ANC) said that her concerns and questions had been covered by other Members.

Dr W Newhoudt-Druchen (ANC) referred Members to the letter the Committee had received from the head of parliamentary legal services. Point 15 in that letter said that the Committee could write to Judge President Hlophe and ask him whether he wished to bring anything in the JSC process to the Committee’s attention. Could the legal advisers explain this further, especially given what Dr Loots had said about the Committee’s narrow functions in the Section 177 process? 

Dr Loots replied that this was another procedural aspect that the legal advisers would consider when they studied the Committee’s practices in respect of magistrates. The principle was to ensure that everyone who stood to be affected by the decision had been given a fair opportunity to contribute to the process. This meant asking those persons whether they wished to alert the Committee to any possible oversights or to anything they thought had been done incorrectly. It could help ascertain the fairness of the process and ensure that everything had been done correctly. 

Adv G Breytenbach (DA) said that she was covered by Mr Horn’s remarks. She thought it would be appropriate for the Committee’s process in this matter to resemble as closely as possible the process it followed in dealing with the removal of magistrates.

The Chairperson noted Mr Horn’s reminder that, when dealing with the removal of magistrates, the Committee was always briefed by the chairperson of the MC’s Ethics Committee. Was there an equivalent in the JSC?

Mr Njikela replied that he would need to check who would be the appropriate and equivalent authority in the JSC. He suspected that the equivalent might be the referring party – in this case, it was the acting Deputy Chief Justice who had referred the matter to Parliament. Alternatively, it could be the chairperson of the JCC. It was the JCC which had done the inquiry and made the finding that had later been adopted or endorsed by the full JSC. 

Adv Swart said that Members of the Committee – himself included – had filed complaints against Judge President Hlophe in the past. Those complaints had been unrelated to the complaint currently at issue. But should such Members withdraw from the process before it began? Even though this would not be a full inquiry, the Committee should certainly be cautious to avoid creating a perception that there was bias in its process. Parliamentary legal services could provide its advice in a future meeting.

The Chairperson asked the legal advisors to consider a further question, related to Dr Newhoudt-Druchen’s question. Would inviting parties to make further submissions to the Committee – even written submissions – not amount to reopening the process? What if the subject of the complaint raised 100 issues that, in his opinion, had not been properly dealt with? Would the Committee not then have to give the JSC the same right of response, and thus the opportunity to reply on each of the 100 issues? Would this not amount to reopening the inquiry? He knew that this right of response was specifically enjoined by the National Prosecuting Authority Act, but that was only in respect of processes for the removal of directors and deputy-directors of public prosecution.

Way forward

The Chairperson said that the first step for the Committee was to ensure, with the Committee secretariat’s help, that Members received all the requisite documents. Second, the Committee would set a date to receive another briefing from parliamentary legal services, with a summary and analysis of those documents. At that briefing, the legal advisors could also answer Members’ outstanding questions from the current meeting. It was important to get a legal opinion about Adv Swart’s question about the involvement of Members who had made unrelated complaints against Judge President Hlophe in the past – he was not sure how many Members, besides Adv Swart, had laid such complaints. The briefing should also involve a comparative analysis of the Committee’s process for magistrates, and how it might be adapted for this context. After the legal briefing, the Committee would “take it from there.” Did Members agree with this plan?

Several Members agreed.

The Chairperson thanked parliamentary legal services. The briefing had been clear and concise precisely because a lot of work had gone into it. The Committee was now asking the legal advisers to do further work, this time analysing the documents so that Members could engage with the matter in an informed way going forward.

Closing remarks

The Chairperson said that the Committee had received a letter from Mr J Selfe (DA) about a parole matter. He suggested that it should be referred to and processed by the Subcommittee on Correctional Services.

Ms Maseko-Jele and Adv Breytenbach agreed.

The meeting was adjourned.  

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