By: ANG Reporter
The Black Lawyers Association (BLA) has thrown its weight behind Judge President Hlophe, who is a subject of impeachment. In a statement, BLA argued that the length of time it had taken to finalise Judge Hlophe’s matter “and the domination of all commentary regarding this matter by people and organisations totally prejudiced against Judge President has delivered a great measure of unfairness to the Judge President”.
“The National Executive Committee has reflected on the decision of the JSC at its special meeting held on the 26th of July 2022. The BLA recognises that the constitution of our Republic reposes to both the Judicial Services Commission and the President of the Republic to suspend a judge who is a subject of removal or impeachment under section 177(1) of the Constitution.”
“We take a view that neither the recommendation of the Judicial Services Commission to recommend a suspension nor that of the President to effect the suspension is compelled by the relevant constitutional provision. Consequently, both the JSC and the President must make a careful appraisal of the relevant facts and consider possible threats to the administration of justice and the repute of the judiciary if a Judge who is a subject of the section 177(1) process is not suspended.”
“However, the President has no jurisdictional basis where the JSC has not made a recommendation.” BLA said for the past twelve years “Judge President Hlophe has carried the stigma of being seen and viewed as someone who influenced the outcome of matters serving before the Constitutional Court by having communication with two judges that were still writing a judgment in respect of the matter”.
“This matter has been widely covered in the media and has been a subject of biased media commentary for all these years. There is very little doubt that the length of time it has taken to finalise this matter and the domination of all commentary regarding this matter by people and organisations totally prejudiced against Judge President has delivered a great measure of unfairness to the Judge President.”
“What is undeniable still, is that for all this period Judge President Hlophe has discharged his judicial functions without any problems. He managed the affairs of the court in which he is the Judge President with great courage and without any basis to conclude that the allegations against him affected his judicial performance and that of his Division.”
BLA said the decision of the JSC finding Judge Hlophe guilty of an impeachable misconduct remained the subject of an appeal.” It is not something extra-ordinary for a decision of a court or some tribunal to be suspended pending the finalisation of an appeal. Persons convicted of serious crimes are often beneficiaries of this salutary principle which is often negated where there is sufficiently demonstrable threat to the interests of justice.”
“The matter is serving before the Supreme Court with the leave of the full court that considered the review application brought by the Judge President Hlophe. This application is granted on the existence of the prospects of success. This fact ought to have weighed in favour of the JSC not exercising its discretion to suspend the Judge President Hlophe.”
“In view of the absence of any suggestion that the suspension is carried out in the interest of preserving some interest constitutionally deserving of protection, the recommendation for the suspension of the Judge President is irrational and unlawful.”
BLA called on President Cyril Ramaphosa” in the exercise of his discretion must consider the fact that he is faced with a unique situation in the history of the country and thus a decision to suspend the Judge President under the circumstances referred will be used as precedent in the future”.
“The unique factual situation in the Hlophe matter makes suspension a rather unwarranted course of action.”
