TWO weeks ago, President Cyril Ramaphosa wrote to the Western Cape High Court division Judge President John Mandlakayise Hlophe informing him of his “immediate removal from office”.
The letter was sent to Hlophe on March 5, and signed by the Justice and Correctional Services Minister Ronald Lamola.
Hlophe’s removal followed his impeachment last month, when the National Assembly voted in favour of his removal, with only 27 members of Parliament against the 305 parliamentarians in favour, which included the ANC and the DA.
Lamola’s spokesperson Chrispin Phiri later confirmed to the Sunday Independent that Hlophe would lose his benefits and pension.
In a letter dated March 14, Hlophe’s attorney Barnabas Xulu wrote to the department seeking clarity on his client’s benefits.
“As can be gleaned from the media statement, you are reported to have conveyed to the public that our client will lose his accrued benefits and pension because of his removal from office in terms of section 177(1) of the Constitution.
“More specifically, it is reported that you confirmed this position to a media inquiry on the implications of our client’s removal from office. This confirmation appears to be accepted as the correct legal position with various commentators accepting your view that our client has lost his accrued benefits and pension because of his removal from office.
“If you indeed conveyed this position to the media as reflecting that of the minister or Ministry, please convey its legal basis to us. Our client has instructed us to advise him on his legal options should you confirm to us the following facts.
“Is it within the minister’s powers to decide the consequences of our client’s removal from office, more particularly in respect of accrued benefits and pension? If so, please refer us to a law that allocates to the minister such powers.”
Xulu asked that if the minister has no power to decide on the consequences of a judge’s removal from office in so far as it relates to accrued benefits and pension, then on what basis had Phiri advised the public that Hlophe had lost his accrued benefits and pension because of his removal from office.
Xulu added: “We accept entirely the possibility that the media report does not accurately reflect your comment about the Minister’s position, and if that is the case, we will advise our client to treat the media report as conjecture and speculation that is not grounded on the law.
“We would therefore be grateful if you are able to confirm to us by close of business on Thursday, 14 April 2024, what the true position is in relation to our client’s accrued benefits and pension.”
Xulu advised that his client had found no legal basis for his client’s loss of accrued benefits and pension due to his removal from office in terms of section 177 of the Constitution.
He argues that neither the Constitution nor the applicable legislation (The Judges Remuneration and Conditions of Employment Act 47 of 2001 and applicable regulations) regulates what happens when a judge is removed from office under section 177 of the Constitution.
“We make it clear that our inquiry is in relation to our client’s accrued benefits and pension. Accrued benefits includes those benefits that he acquired while being a judge and not future benefits which we accept terminates on the date of his removal from office.
“We record that at the time when our client joined the bench as a judicial officer, he was never informed that there was a possibility of losing his accrued benefits in the event of impeachment.”
Xulu mentioned that his client found it shocking that the ministry decided to deprive Hlophe of his accrued benefits despite a pending Constitutional Court challenge in respect of the decision of Parliament in this matter.
Contacted for comment on Thursday, Phiri did not respond to questions from the Sunday Independent.