Hlophe lawyers say court must hear him Potential grounds given for recusal of justices disputed

• Published date: 26 April 2024
• Publication title: Business Day (Johannesburg, South Africa)

Hlophe’s legal team was responding to directions from the Constitutional Court asking for submissions on questions raised by the potential disqualification of seven of its justices to hear his application to the highest court

Shortly before he was impeached in February, Hlophe approached the highest court directly, saying it had exclusive jurisdiction, and asked it to set aside the decision of parliament’s justice portfolio committee to refer Hlophe to the National Assembly for an impeachment vote. But in the absence of an interdict, parliament pressed ahead, and he was impeached by an overwhelming majority.

The Constitutional Court application, however, was still pending. The Constitutional Court then issued directions to the parties, saying that of its 10 justices then sitting only three had no potential grounds for recusal. Three judges are not enough to constitute a quorum.

The others were all potentially disqualified for various reasons, including "allegations of enmity between one justice and the applicant", being the chair of the Judicial Service Commission (JSC) — a party to the case — having previously adjudicated cases relating to Hlophe, attempting to mediate the original dispute that gave rise to the misconduct complaint for which Hlophe was eventually impeached, and a prior personal friendship with him. No further details were given by the directions.

The directions asked the parties how the court should deal with this situation.

Hlophe’s team, led by Vuyani Ngalwana SC and Thabani Masuku SC, said the stated potential grounds were mostly insufficient for recusal. The directions were "lacking in detail and are totally insufficient to inform the parties of the grounds for the recusal". For example, the allegations of enmity did not name the justice involved.

While being a member and chair of the JSC may be a sufficient basis for recusal, the constitution "itself envisages that the chief justice would always form part of the JSC", they said. It was "also not clear that having previously adjudicated cases related to the applicant must automatically result in the recusal of the justices", they said.

The directions did not say which cases relating to Hlophe the Constitutional Court had in mind. But in the DA’s submissions, its lawyers conducted their own research and named cases in which some of the justices now at the Constitutional Court heard and decided various challenges in the 15 of years of litigation on the original misconduct complaint...