The battle of Little Big Horn, where Custer took his last stand in 1876, came to mind as Western Cape judge president John Hlophe tried a final roll of the litigious dice by attempting to interdict the impeachment vote in parliament this week.

Like Custer, he was fighting a losing battle. Gauteng high court judge Sulet Potterill duly struck Hlophe’s application from the roll on Wednesday.

If the doctrine of the separation of powers — an integral part of SA’s constitutional set-up — means anything, it means that the National Assembly cannot second guess the Judicial Service Commission’s (JSC’s) legally binding decision that Hlophe be impeached. It is the function of the JSC to decide on gross misconduct on Hlophe’s part, and it has done so.

The role of the National Assembly is confined to voting on whether to call upon the president to remove Hlophe from office. That call, which is political in nature, needs to be supported by at least two thirds of its members — if that threshold is achieved the president must remove Hlophe from office. This conclusion is the only legally viable interpretation of the wording of Section 177 of the constitution, our supreme law.

Hlophe is hoist by his own petard.

In the Jacob Zuma era, when the ANC majority was prepared to lie about the existence of a “fire pool” at Nkandla, there was a prospect that more than a third of the members of the National Assembly would vote to protect Hlophe for his loyalty to Zuma rather than vote for his impeachment. That prospect has faded now that Zuma no longer rules the roost in the ANC, having thrown in his lot with a splinter party called MK after being ejected from the presidency in 2018.

The Stalingrad strategy adopted by Hlophe has come back to bite him as he is most unlikely to receive any sympathy in the National Assembly vote. He has done great damage to the administration of justice, especially in his own division, and his antics have undermined the rule of law. All parliamentarians who have read the Zondo state capture commission’s report should know where their solemn duty to uphold the rule of law lies.

Paul Hoffman, SC
Accountability Now