The response of the Judicial Service Commission (JSC) to the call for the suspension of Western Cape judge president John Hlophe is encapsulated in a report in Legalbrief on Wednesday morning:
JSC spokesperson CP Fourie said the effect of these as-yet unresolved processes was that the JSC was unable to make any recommendations to President Cyril Ramaphosa that Hlophe be removed or suspended from his position: “... the JSC is currently not in a position to do anything in response to the call for the judge president's suspension.”
Fourie is quite wrong regarding the legal position. He should acquaint himself with the provisions of section 177 of the constitution and also understand that a precautionary suspension (aka “gardening leave”) is not designed to punish the alleged miscreant, but to protect the reputation of the institution that takes the step of suspending any person who is under a cloud of suspicion of wrongdoing.
The removal from office of a judge is another, far more serious, matter and different consideration apply. However, the law makes it clear that while the JSC ponders whether a judge is guilty of gross misconduct, it is empowered to advise the president to suspend the judge in question.
Until there is legal finality on the complaint of the justices of the Constitutional Court against Hlophe (which could take years if Hlophe runs true to form by persisting in his Stalingrad strategy) the JSC is at large to advise the president to suspend him. Hlophe has been on suspension in the past and should be suspended again now, before more damage in done.
Paul Hoffman, SC
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