Freedom Under Law welcomes NA vote to remove Judges Hlophe and Motata from office

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21 February 2024

Freedom Under Law (FUL) welcomes the decision of the National Assembly to vote for the removal of Judges Hlophe and Motata from office.

Judge Hlophe was the subject of a complaint by eleven judges of the Constitutional Court, dating back to 2008, alleging that he had attempted to interfere improperly with the decision in a case involving former President Zuma. The JSC initially dismissed the complaint, but after litigation, including by FUL, the decision was overturned. Following several years of litigation, a judicial conduct tribunal was finally convened in 2018, and in 2021 the tribunal recommended that Judge Hlophe be removed from office. In 2022, the full JSC finally endorsed this finding and referred the matter to Parliament. Judge Hlophe’s attempt to review the JSC’s decision was dismissed by a full bench of the Gauteng High Court.

Judge Motata was convicted of driving a vehicle while under the influence of intoxicating liquor in an incident dating back to 2007. In 2010, his appeal against the conviction was dismissed. Two complaints were lodged against Judge Motata, relating to the use of racist language at the scene of the accident, and advancing a defence which he knew to be untrue. After a lengthy delay, caused in part by Judge Motata challenging the JSC process, in 2018 a judicial conduct tribunal upheld the complaints and recommended Judge Motata’s removal from office. The JSC overruled this finding and concluded that the standard of gross misconduct was not reached. In 2023, this decision was overturned in litigation brought by Freedom Under Law.

Both judges have therefore sought to avoid being held to account for their gross misconduct by instituting multiple meritless court challenges.

In terms of the Constitution, once the JSC has found that a judge is guilty of gross misconduct, Parliament must adopt a resolution calling for the judge’s removal from office with a 2/3rds majority. The President is then obliged to formally remove the judge from office. As the National Assembly has now adopted the required resolution, the President must now formally remove the judges from office.

The outcome of the National Assembly vote is a sad moment for the judiciary, because it marks the first time in South Africa’s history that judges will be removed from office for misconduct. This represents a crucial step in ensuring judicial accountability given the nature of the misconduct committed by both judges. It is vital to protecting the integrity of the judiciary, and for public confidence in our judges, that there are serious and meaningful sanctions imposed on judges who commit serious acts of misconduct. Whilst the process, in respect of both judges, has taken far longer than it should have and has highlighted many problematic aspects with the process of holding judges accountable, the final outcome is to be welcomed.