The Public Protector has been asked to investigate whether it was constitutional for the DA leader to participate in the process remove Judge President John Hlophe from the bench. l Picture: Adrian de Kock
The Public Protector has been asked to investigate whether it was constitutional for the Democratic Alliance leader to participate in the parliamentary process that voted to remove Judge President John Hlophe from the Bench.
On Wednesday last week, community activist Elias Muller wrote a complaint to Advocate Kholeka Gcaleka arguing that the process that led to the country’s longest-serving High Court Judge President’s removal from the bench was flawed.
Muller stated the involvement of DA leader, John Steenhuisen, tainted the process because when Hlophe, as a judge, presided over a trial judge in a corruption case against former state security Minister Bongani Bongo, he had found that Steenhuisen had lied under oath before acquitting Bongo. The decision that was later overturned by the Supreme Court of Appeal.
“Advocate Gcaleka, I had tried to remain silent or neutral on this matter, but I am unable to continue remaining silent while I strongly believe that Dr Hlophe was subjected to what Plato described as the worst form of injustice, which is the pretended justice.
“I tried to suppress my views about the removal of Dr Hlophe from the Bench, but I am unable to continue being complicit to the injustice that I believe he was being subjected to. I do not wish to enter into the allegations levelled against Dr Hlophe, but only wish to submit that despite the seriousness of the allegations, he deserved to be treated fairly by Parliament and the president.
“I respectfully submit that Mr Steenhuisen's participation in a process that led to Dr Hlophe's removal or impeachment tainted the process, and therefore the decision was irrational and unlawful due to what I believe to have been an actual apprehension of bias on his part.
“Mr Steenhuisen failed to declare that the former Judge President of the Western Cape had found that he had lied under oath, and further failed to recuse himself from the parliamentary process dealing with the matter involving the former Western Cape Judge President.
“Dr Hlophe had previously made unfavourable remarks or findings against Mr Steenhuisen, which is something that I believe disqualified him (Mr Steenhuisen) from participating during a parliamentary process that voted to remove or impeach Dr Hlophe from the Bench.
“Mr Steenhuisen, furthermore, failed to disclose actual or potential conflict of interest. Mr Steenhuisen could not have been expected to remain impartial against Dr Hlophe, who made unfavourable remarks or findings against him,” wrote Muller.
He argued that Ramaphosa had a duty to respect Hlophe's constitutional rights.
“As a result, his decision to remove Dr Hlophe from the Bench was irrational and unlawful. The president should have referred the matter back to Parliament so that there is a fair process that excludes Mr Steenhuisen due to the conflict of interest.”
In his motivation for the investigation, Muller reminded Gcaleka, and the sixth administration struggled to finalise the appointment of a deputy public protector. This was because a legal opinion found that advocate Busisiwe Mkhwebane was not supposed to have participated in the process of appointing a deputy public protector due to conflict of interest.
Muller asked Gcaleka to investigate whether Ramaphosa acted in breach of his duties, failed to uphold the Constitution, and acted improperly by ignoring the tainted parliamentary process that voted to remove or impeach Hlophe from the Bench.
“Whether the president applied his mind on whether Mr Steenhuisen's participation in the parliamentary process that voted to remove or impeach Dr Hlophe, rendered the process unfair to Dr Hlophe or not.
“Whether the president took into account the adverse judicial remarks or findings made against one of the participants in the parliamentary process, that led to Dr Hlophe's removal from the Bench.
“I submit that the president could not have ignored the unfairness and injustice that Dr Hlophe was subjected to, irrespective of the seriousness of the allegations he was facing at the time of his removal, which I strongly believe to have been irrational, unlawful, and inconsistent with the Constitution,” Muller wrote.
“The Public Protector South Africa can confirm that it has received a complaint from Mr Elias Muller, and that the matter is currently being processed as per our standard operating procedure,” said PP spokesperson Khulu Phasiwe.
The DA national spokesperson, Karabo Khakhau, did not respond by the time of publication.
Earlier this year, EFF criticised the impeachment, saying it represented a “systematic attack on the black intelligentsia” in South Africa, orchestrated by a harmful alliance between the ANC and the DA.
Hlophe, who now leads the MK party in Parliament, criticised the National Assembly and said that it had acted with "obscene haste" to vote on his impeachment without giving him the right to defend himself against a misconduct finding by the Judicial Service Commission.
thabo.makwakwa@inl.co.za