Judge John Hlophe Tribunal - All the details

Judicial Conduct Tribunal for Judge President John Hlophe

WHO IS JOHN HLOPHE?

John Hlophe is the current Judge President of the Western Cape Division of the High Court. This makes him the most senior Judge in the Division. He was appointed to this position in 2000 and will remain the Judge President until he retires.

Hlophe studied law at the University of Natal, the University of Fort Hare and Cambridge University. He taught law at the University of Transkei before being appointed to the bench.

He was appointed as a judge in 1995 and, at the age of 36, was the first black judge to be permanently appointed to the Western Cape High Court. He was also the first full-time academic to be appointed as a High Court Judge. He was appointed as Judge President in 2000.

Since becoming Judge President, Hlophe has been involved in a number of controversial matters including:

In 2004 he wrote a report on racism in the Western Cape High Court and submitted it to Chief Justice Pius Langa. In this report he accused the then Deputy Judge President Jeanette Traverso of racism. He also accused certain white judges and leading members of the Cape Bar of racism in the 43-page report submitted to the Minister of Justice in November 2004.
In June 2006, the JSC was asked to investigate complaints regarding a possible conflict of interest when Hlophe’s son received a bursary from a large Cape Town firm of attorneys, Smith Tabata Buchanan Boyes (STBB). Hlophe was later cleared of involvement and the complaint was dismissed by the JSC.
In 2006 the JSC was also asked to investigate a complaint against Judge Hlophe regarding his relationship with the Oasis financial company from whom he had been receiving a monthly retainer of R10 000 per month. The complaint related to the ethics of judges receiving renumeration outside of their judicial duties. A further concern was that he had granted Oasis permission to sue Judge Siraj Desai.
In 2008 judges of the Constitutional Court reported to the JSC that Judge Hlophe had approached two judges, namely Justice Nkabinde and Justice Jafta, and attempted to improperly influence them in a pending case regarding Jacob Zuma and the Thint company. This is the matter for which the Judicial Conduct Tribunal is being held.
In 2017 Hlophe was the focus of a ‘searing’ Supreme Court of Appeal (SCA) judgment relating to his conduct in a matter involving the alleged theft of R48-million by a businessman.
In 2020 Judge Hlophe was the subject of a complaint to the JSC by Deputy Judge President Goliath.

WHAT IS JUDGE HLOPHE’S TRIBUNAL ABOUT?

“The alleged incident, which has hung like a dark cloud over the judiciary for almost a decade, relates to a complaint lodged by the full Constitutional Court Bench, which alleged Hlophe approached Jafta and Nkabinde in their chambers and sought to improperly influence them in a matter before the court involving Zuma, then an ordinary citizen.” – City Press, 2018

In 2008 there was a case before the Constitutional Court involving Jacob Zuma, who at that time had not yet become President of South Africa. This was a corruption case concerning Zuma and the arms company Thint, and their role in the multi-billion Rand arms deal.

It is alleged that Judge President Hlophe approached Constitutional Court judges Bess Nkabinde and Chris Jafta and attempted to influence their decision in favour of Jacob Zuma in the case.

The complaint regarding this was made to the Judicial Service Commission on behalf of all the Constitutional Court Judges. (Read a copy of the full statement issued by Chief Justice Pius Langa.)

WHY HAS IT TAKEN SO LONG?

Marianne Thamm argues in a Mail and Guardian article;

“Hlophe has employed Jacob Zuma’s Stalingrad strategy when it comes to facing the JSC inquiry into alleged misconduct. It is a case that had dragged on for almost a decade.”

The process has been dogged by a series of court cases over the past ten years. As the JSC set up process to try and deal with the complaint in a formal manner the constitutionality of these processes where challenged by various complainants on both sides of the issue.

Following the initial lodging of a complaint against Hlophe in 2008, a sub-committee of the Judicial Service Commission (JSC), conducted a preliminary investigation into the complaint.

After some preliminary postponements the JSC, by majority decision, refused a further postponement. Hlophe’s counsel asked to be excused on the basis that they could serve no useful purpose in the absence of their client and without instruction. The matter then proceeded in the absence of Judge Hlophe and his legal representatives.

An urgent application by Hlophe to the South Gauteng High Court, Johannesburg, for an order declaring the entire proceedings of the JSC unlawful and therefore void ab initio was partly successful in that the court set aside the proceedings of 7 and 8 April 2009 and ordered that they were to commence de novo on a date suitable to the parties. The court could find no basis for a finding that the proceedings on 5 July 2008 were unlawful.

After hearing the matter, the sub-committee’s report was sent to the JSC, who dismissed the complaints by a majority vote.

This view was challenged in court by the NGO Freedom Under Law. They were successful in their appeal. The SCA and the Constitutional Court dismissed Judge President Hlophe’s appeal.

Constitutional Court judges Jafta and Nkabinde challenged the JSC’s decision to hold a preliminary enquiry and set up the tribunal, as well as aspects of the procedures used for the misconduct hearing, saying it was important to get it right, although they denied wanting to stop the hearing altogether.

As per the SCA judgment, the challenge was 1) to JSC’s decision to hold a preliminary enquiry and constitute the tribunal, and 2) a challenge to the constitutionality of the provision of the JSC Act that provided for the involvement of a member of the NPA in collecting and leading evidence. (Read the full SCA judgment.)

Jafta and Nkabinde’s legal challenge went all the way to the Constitutional Court where it was again dismissed.

Just when it seemed that the appeal process had been exhausted and that there was no further legal recourse which could be employed to cause a delay, the JSC had to attend to the matter of Judge Nkola Motata’s pending tribunal first before proceeding with the Judge Hlophe matter, because Judge Motata had also challenged the constitutionality of the disciplinary process. After Judge Motata’s legal challenge was unsuccessful, his Judicial Conduct Tribunal was held in January 2018.

TRIBUNAL MEETING: 2 JULY 2018

The Judicial Conduct Tribunal was scheduled to begin on Monday 2 July 2018. The Tribunal members and counsel convened at the Park Inn Hotel, in Sandton. Justices Bess Nkabinde and Chris Jafta were also present as they had made themselves available to be called as witnesses. Judge President Hlophe was not present.

As the meeting convened the chairperson of the Tribunal, Judge Labuschagne, said that Tribunal member Judge Musi had a prepared statement to make. In his statement Judge Musi said that the Tribunal had received an urgent affidavit from Judge President Hlophe calling on Judge Musi to recuse himself due to some disparaging remarks he had allegedly made about Hlophe in 2017. Judge Musi denied these allegations but stated that in light of the circumstances he was recusing himself from the Tribunal.

Mail and Guardian quotes Judge Musi as saying;

“Having considered the manner in which this whole issue has unfolded, the fact that Judge President Hlophe called me and made certain ex parte communications to me without having the other parties there, the interests of justice and obviously the interests of the judiciary — I do not think the judiciary needs this at this stage.”

Judicial Conduct Tribunals are made up of three members, and as Judge Musi has recused himself, the Chief Justice will now have to appoint another judge to sit on the Tribunal. The Tribunal cannot continue until this new member is appointed.

Judge Labuschagne has postponed the Tribunal sine die (which means that the date of the next hearing has yet to be determined).

Watch the video of the Tribunal meeting here:

JUDGE MAKGOKA APPOINTED TO THE TRIBUNAL

To replace Judge Musi, Judge Makgoka has been appointed by Chief Justice Mogoeng to sit on the tribunal. Judge Makgoka was appointed to the Gauteng High Court in 2009 after having worked as an attorney since 1994. He was appointed to the Supreme Court of Appeal (SCA) in April 2018.

TRIBUNAL MEETING OCTOBER 2019

Late in October 2019 we were information that the Judicial Conduct Tribunal for Judge Hlophe would resume on Monday, 21 October 2019, in Johannesburg.

We were then informed by the Office of the Chief Justice late on Friday evening (18 October 2019) that the Judicial Conduct Tribunal for Judge Hlophe was to be postponed. A new date has not yet been decided.

According to Times Live, in a statement, the tribunal said:

“Regrettably, the tribunal is unable to commence with hearings due to an unresolved dispute regarding legal fees between the Office of the State Attorney and Judge President Hlophe’s attorney.

“The tribunal president, Judge Labuschagne, is exploring other avenues to ensure that the dispute is resolved to enable the tribunal to convene as soon as it is practically possible and deal with this long outstanding matter.”

Download the press statement: Postponement of the Hearings of the Judicial Conduct Tribunal

COULD THIS TRIBUNAL LEAD TO IMPEACHMENT?

According to Section 177 of the Constitution;

(1) A judge may be removed from office only if—

(a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
(b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.

(2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed.

(3) The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1).

If the Judicial Conduct Tribunal finds that sec 177(1)(a) of the Constitution should be invoked, then this could result in Judge President Hlophe being impeached. The findings of the Tribunal will go back to the JSC, who must decide on the next steps to have the judge impeached. In order for a judge to be impeached The National Assembly must vote for impeachment by a two thirds majority.

TRIBUNAL MEETINGS IN 2020

During June 2020, the Judicial Service Commission announced that the Judicial Conduct Tribunal for Judge Hlophe would resume on 26 October 2020 and sit for five days. However, on 20 October 2020, the secretary of the JSC announced that the Tribunal would be further postponed. The reasons given for the postponement were that Judge Hlophe’s legal representative was unavailable, but also that Justice Chris Jafta, one of the complainants was unwell.

The Tribunal was finally rescheduled for 14 to 18 December 2020 in Kempton Park, Gauteng. There, Tribunal members Joop Laubaschagne, Tati Makgoga and Nishani Pather sat to hear the evidence and testimony of the Justice Chris Jafta and Bess Nkabinde. It also heard from Judge Hlophe and from an expert witness on isiZulu linguistics, Professor Langalibalele Mathenjwa. Finally, the Tribunal heard legal argument from all the lawyers representing the different parties.

See a recap of the Tribunal hearing here.

TRIBUNAL DECISION – APRIL 2021

In April 2021, the Tribunal handed down its decision, finding Judge Hlophe guilty of gross misconduct. The Tribunal found that on a proper and objective consideration of the facts and probabilities, Judge Hlophe’s conduct breached section 165 of the Constitution (the provision protecting judicial independence) in that he tried to improperly influence Justice Nkabinde and Jafta to rule in a particular way. The Tribunal’s decision was subsequently referred to the Judicial Service Commission to take a final decision on Judge Hlophe’s impeachment.

See the full Tribunal decision here.

JSC’S CONSIDERATION OF THE HLOPHE TRIBUNAL DECISION

The JSC was scheduled to sit on 4 June 2021 to consider the Tribunal’s decision which found Judge Hlophe guilty of misconduct. Howoever, the JSC announced that it could not finish its deliberations and postponed the matter to 30 July 2021 for a final decision. However, two of the JSC’s members took ill before the meeting of July and it was further postponed to 25 August 2021.

When considering misconduct complaints against judges the JSC sits without the members of parliament but only with lawyers and judges, the so-called ‘Small JSC’. See who sits on the JSC panel here: https://www.judgesmatter.co.za/opinions/who-sits-on-the-jsc-panel/

JSC’S DECISION TO IMPEACH HLOPHE

On 25 August 2021 the JSC announced that an 8 to 4 majority of its members had decided to uphold the findings of the Tribunal and voted to impeach Judge Hlophe for gross misconduct. The JSC undertook to give reasons later.

The JSC has also given Judge Hlophe until 3 September 2021 to give reasons why he should not be suspended pending the finalisation of the parliamentary process.

See the JSC’s decision here.

Read the JSC Tribunal Decision against Hlophe here.

HOW DOES IMPEACHMENT WORK?

The JSC’s impeachment recommendation will now be sent to the National Assembly in Parliament, for final decision on the removal of Judge Hlophe from office. We believe that the Speaker must call for a special sitting of the National Assembly where members will debate the JSC’s recommendation and take a vote on removing Judge Hlophe from office. A two-thirds majority is required. In the meantime, the Speaker must circulate the JSC’s recommendation with the full reasons to all members of parliament.

At its meeting on Monday 25 July 2022 the Judicial Service Commission (JSC), constituted without members designated by the National Assembly and National Council of Provinces, deliberated and resolved to advise the President to suspend Judge President Hlophe in terms of section 177 (3) of the Constitution.

Read 25 July 2022 full Media Statement here

THE NEXT STEPS – SUMMARY

In 2008, the judges of the Constitutional Court filed a complaint of judicial misconduct against Judge President of the Western Cape High Court John Hlophe on the grounds that he had sought to influence the outcome of a matter relating to former president Jacob Zuma’s corruption charges.

In April 2021, 13 years later, the Judicial Conduct Tribunal found Judge President John Hlophe guilty of gross misconduct. This decision was then confirmed by the Judicial Service Commission, which also recommended that Parliament impeach and ultimately remove him from the bench as per section 177 of the Constitution.

Hlophe challenged both the decision and the process and took the matter before the Gauteng High Court. Though the case was dismissed in May 2022, he was granted leave to appeal.

Hlophe then lodged an application with the Supreme Court of Appeal (SCA) to appeal the ruling of the High Court, which had cleared the way for his potential impeachment.

In the meantime, in July 2022, the JSC recommended to President Cyril Ramaphosa that he suspend Hlophe, pending a vote by the National Assembly on whether he should be impeached and removed from office, under the provisions of Section 177(3) of the Constitution.

In December, 5 months later, President Cyril Ramaphosa suspended Judge President Hlophe from his duties with immediate effect, pending a decision of the National Assembly in Parliament on Hlophe’s impeachment.

Hlophe has since missed the extended January 21^st deadline to submit papers to the SCA in Bloemfontein. In terms of the SCA rules, his appeal has now lapsed. This clears the way for Parliament to proceed with the impeachment.

So what needs to happen next?

In short, nothing much. No further investigations need to be done and no further hearings need to be held. All that simply needs to happen is for Parliament to vote.

The Speaker of Parliament has already submitted the JSC’s recommendation, with the full reasons, to the Justice Portfolio Committee, who must compile a report that will be tabled before the National Assembly.

The Speaker must then call for a special sitting of the National Assembly where members will debate the JSC’s recommendation and take a vote on removing Judge Hlophe from office. A two-thirds majority is required in terms of the section 177 of the Constitution.

Once this has happened then we might finally be able to put this 15 year debacle behind us and the judiciary can remove one of the impending conduct cases from their long to-do list.

Read more: ‘JSC votes to impeach Hlophe’

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Judicial Conduct Tribunal for Judge President John Hlophe

WHO IS JOHN HLOPHE?

WHAT IS JUDGE HLOPHE’S TRIBUNAL ABOUT?

WHY HAS IT TAKEN SO LONG?

TRIBUNAL MEETING: 2 JULY 2018

JUDGE MAKGOKA APPOINTED TO THE TRIBUNAL

TRIBUNAL MEETING OCTOBER 2019

COULD THIS TRIBUNAL LEAD TO IMPEACHMENT?

TRIBUNAL MEETINGS IN 2020

TRIBUNAL DECISION – APRIL 2021

JSC’S CONSIDERATION OF THE HLOPHE TRIBUNAL DECISION

JSC’S DECISION TO IMPEACH HLOPHE

HOW DOES IMPEACHMENT WORK?

THE NEXT STEPS – SUMMARY

So what needs to happen next?

Further Reading:

Read our previous articles:

Press Articles:

Videos:

Judgments:

Further resources:

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Hlophe Tribunal 2008-2023

Judicial Conduct Tribunal for Judge President John Hlophe

WHO IS JOHN HLOPHE?

WHAT IS JUDGE HLOPHE’S TRIBUNAL ABOUT?

WHY HAS IT TAKEN SO LONG?

TRIBUNAL MEETING: 2 JULY 2018

JUDGE MAKGOKA APPOINTED TO THE TRIBUNAL

TRIBUNAL MEETING OCTOBER 2019

COULD THIS TRIBUNAL LEAD TO IMPEACHMENT?

TRIBUNAL MEETINGS IN 2020

TRIBUNAL DECISION – APRIL 2021

JSC’S CONSIDERATION OF THE HLOPHE TRIBUNAL DECISION

JSC’S DECISION TO IMPEACH HLOPHE

HOW DOES IMPEACHMENT WORK?

THE NEXT STEPS – SUMMARY

So what needs to happen next?

Further Reading:

Read our previous articles:

Press Articles:

Videos:

Judgments:

Further resources: