UPDATE | Court gives Hlophe's impeachment vote the go-ahead

• Suspended Judge President John Hlophe's urgent application to interdict Parliament's removal proceedings has been struck from the court roll.
• Judge Sulet Potterill found Hlophe's urgency was self-created. 
• This means the scheduled vote to remove Hlophe can go ahead on Wednesday afternoon.

The National Assembly will vote on the removal of suspended Western Cape Judge President John Hlophe after the court he once led ruled that the urgency of his application to interdict the vote was self-created.

After hearing arguments on Tuesday - a day before the vote was scheduled to take place - Judge Sulet Potterill delivered her ruling shortly after 09:00 on Wednesday, a mere seven hours before the removal of Hlophe and retired Judge Nkola Motata was scheduled to be considered during a special sitting of the House. Potterill, who is a member of the Gauteng Bench, heard the case due to Hlophe's connection to the judges in the Western Cape division.

Should a two-thirds of the MPs vote in favour, Hlophe and Motata will become the first judges to be removed in democratic South Africa.

On 12 February, Hlophe brought the urgent application, seeking to interdict the National Assembly proceedings, pending his application to the Constitutional Court. After the Portfolio Committee on Justice and Correctional Services adopted a report recommending Hlophe's removal in November, he initiated the application to the Constitutional Court, asking it to declare the committee's process unconstitutional and to order Parliament to draft for the judges' impeachment.

But, pointing out that self-created urgency is the urgency which stems from deliberately actioning upon the hour of reckoning, Potterill said:

She added that if Hlophe wanted to avoid legislation, as he alleged, it was "conspicuously absent" that he sought an undertaking from Parliament not to proceed with the vote, pending his Constitutional Court case. 

She said the committee's report, which was sent to Hlophe in December, already set out that the National Assembly would vote on it. 

Potterill added:

Potterill also pointed out that it was common cause that Hlophe's application to the Constitutional Court did not include an application for an urgent interdict or a Part A and a Part B. 

"This would have been logical and sound in law since it is averred or submitted on behalf of JP (Judge President) Hlophe that the Constitutional Court has exclusive jurisdiction on the issues raised in the application to the Constitutional Court," said Potterill. 

She added that it must also be noted that Hlophe is not an ordinary litigant - he has heard urgent matters and knows the practices and laws. 

She struck the urgent application from the court roll.

"It was manifestly unreasonable and self-created," she said when she described the application. 

READ| Hlophe will know on Wednesday morning whether vote to remove him will go ahead

She said Hlophe would obtain "substantial redress" if the Constitutional Court decides to hear the case. 

Potterill ordered that each party should pay its own costs. 

The Portfolio Committee's recommendation to remove Hlophe follows a finding of gross misconduct by the Judicial Service Commission (JSC).

In May 2008, justices of the Constitutional Court laid a complaint with the JSC about Hlophe's attempt to convince Justices Chris Jafta and Bess Nkabinde to rule in favour of former president Jacob Zuma in his bid to overturn warrants used to seize 93 000 pages of corruption trial evidence against him. 

After much legal wrangling, the JSC found Hlophe guilty of gross misconduct in August 2021. 

The commission, in a majority ruling, found that Hlophe seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court. 

This brought the case to the portfolio committee's attention for the first time, but Hlophe reverted to the High Court to review the JSC's decision, and the parliamentary process was put on ice. 

In May 2022, Gauteng High Court judges Aubrey Ledwaba, Roland Sutherland and Margaret Victor shot holes in Hlophe's arguments on why the misconduct allegations against him should either be referred to the JSC "to deal with the issues as required by law" or decided through a new parliamentary inquiry. 

The judges dismissed Hlophe's application, stating that his challenges to the JSC process, if applied, would render judges untouchable. 

The full Bench also rejected Hlophe's arguments that four of the JSC members who voted in favour of him facing impeachment - Judge Boissie Mbha, Justice Sisi Khampepe, Western Cape Premier Alan Winde and Gauteng Judge President Dunstan Mlambo - were all conflicted and demonstrated perceived bias against him. 

Hlophe then appealed to the Supreme Court of Appeal. 

However, in June, his appeal against the gross misconduct finding lapsed because he did not file the court record by the deadline. 

During Tuesday's proceedings, advocate Thabani Masuku, SC, suggested this appeal was still to be considered, but advocate Adiel Nacerodien, for the speaker, said it was dead.

Potterill agreed with Nacerodien.

ALSO READ | Lifetime salary and perks at stake for judges Hlophe and Motata if impeachment goes through 

Hlophe is not the only judge facing removal, and it took a similarly long time for Motata's impeachment to reach this point.

In 2007, an inebriated Motata crashed his vehicle into the boundary wall of Richard Baird's Hurlingham home in Johannesburg.

Two years later, the Gauteng High Court in Johannesburg convicted Motata of driving under the influence of alcohol and fined him R20 000 or 12 months' imprisonment.

He was also found to have falsely accused Baird of racism. 

The case was referred to a JSC tribunal, which found Motata guilty of gross misconduct and recommended to the JSC that he should be removed as a judge. 

ALSO READ | Hlophe, Motata's last-ditch efforts to scupper removal fall flat

However, a JSC majority report found Motata being three sheets to the wind was a mitigating factor, and it did not address he had lied when he denied being drunk. 

Former Chief Justice Mogoeng Mogoeng signed off on this report, in which Motata was found guilty of misconduct and fined more than R1 million. 

However, Freedom Under Law took the case to court, arguing Motata should be found guilty of gross misconduct. This case concluded in June 2023, when the SCA set aside the JSC majority report. 

The court elected not to refer the Motata saga back to the JSC for a fresh decision but referred it to Parliament. 

The National Assembly sitting for the vote is scheduled for 16:00 on Wednesday, after Finance Minister Enoch Godongwana's Budget speech.

With both the ANC and DA supporting both judges' removal, the required two-thirds majority would be obtained unless MPs break ranks from their parties. The EFF does not support either of the judges' removal.