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John Hlophe

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John Hlophe
Judge President of the Western Cape High Court
In office
1 May 2000 – 1 March 2024
Appointed byThabo Mbeki
DeputyJeanette Traverso
Patricia Goliath
Preceded byEdwin King
Deputy Judge President of the Western Cape High Court
In office
18 May 1999 – 30 April 2000
Appointed byNelson Mandela
Preceded byEdwin King
Succeeded byJeanette Traverso
Judge of the High Court
In office
1 January 1995 – 1 March 2024
Appointed byNelson Mandela
DivisionWestern Cape
Personal details
Born
Mandlakayise John Hlophe

(1959-05-19)19 May 1959
Stanger, Natal, Union of South Africa
Spouse
(m. 2015; div. 2022)
EducationOhlange High School
Alma mater (LLM, PhD)

Mandlakayise John Hlophe (born 1 January 1959) is a South African jurist. He was the Judge President of the Western Cape Division of the High Court of South Africa from May 2000 until March 2024, when he was impeached. He was the first South African judge to be impeached under the post-apartheid Constitution.

Early life and education[edit]

Hlophe was born on 19 May 1959 in Madundube, a rural area of Stanger in the former Natal Province (present-day KwaZulu-Natal).[1][2] He began school in 1967 at the Prospect Farm Primary School in Stanger, and he matriculated in 1978 at Ohlange High School in nearby Durban.[2] His father, originally from Port Shepstone, worked as a security guard and later as a traditional healer, while his mother, originally from East Pondoland, worked as a sugarcane cutter and gardener.[2][3] He had one elder brother.[2] Though both of his parents died in 1980,[2] his mother's employer, businessman Ian Smeaton, continued to sponsor his education.[4][5]

He attended the University of Fort Hare from 1979 to 1981, completing a BJuris, and went on to complete an LLB at the University of Natal in 1983.[1][2] At the University of Natal, he studied administrative law with Lawrence Baxter, under whom he wrote his first academic article, a note on lobolo in Zulu customary law.[5] After graduating, he was a fellow at the Legal Resources Centre in Durban, until, in 1984, he moved to Cambridge, England for further study. Supported by a Livingstone Trust scholarship, he completed an LLM at Cambridge University in 1984.[2] He returned briefly to Natal in 1985, lecturing in law at the University of Zululand's KwaDlangezwa campus, but later that year he undertook doctoral studies at Cambridge on an Africa Educational Trust scholarship.[2] He completed his PhD in 1988.[1]

Academic career[edit]

Later in 1988, Hlophe joined the faculty of the University of Natal, becoming a lecturer in law at the university's Pietermaritzburg campus.[1][2] He worked there for two years before, in 1990, he moved to Mthatha, Eastern Cape to join the University of Transkei.[2] He was promoted to professor and head of public law in 1992.[1] As an academic, he was a founding member of the university's legal aid clinic and the chief editor of the Transkei Law Journal.[1] He also conducted side-work as a mediator and arbitrator, through the Independent Mediation Service of South Africa, and as a consultant on matters of labour law and industrial relations.[1]

While living in Mthatha, Hlophe was a member of the Industrial Court of Transkei, and in 1994 he became an ad hoc member of the Industrial Court of South Africa.[1] In the interim, in 1993, he was admitted as an advocate of the Supreme Court of Transkei.[1]

Cape High Court: 1995–2024[edit]

The Cape High Court in Cape Town

Shortly after the end of apartheid, newly elected President Nelson Mandela appointed Hlophe as a judge of the Cape Provincial Division of the Supreme Court of South Africa (later a division of the High Court of South Africa). He took office on 1 January 1995 and, aged 35, he was one of the youngest judges in the country.[1] According to some reports, he was the first black judge to join the Cape bench.[5]

After serving as the division's acting Deputy Judge President in 1998,[6] he was permanently appointed to that position on 18 May 1999.[7] The following year, on 1 May 2000, he succeeded Edwin King as the division's Judge President.[8][9]

Notable cases[edit]

In the assessment of the Daily Maverick, Hlophe was generally a talented jurist and "it was his conduct as a judicial officer that sank what could have been a brilliant and transformative career".[5] Similarly, while admiring his "intellectual pedigree", Hugh Corder remarked that, "not every good academic makes a good judge".[10] Constitutional law judgments written by Hlophe were upheld by the Supreme Court of Appeal in De Lille v Speaker of the National Assembly and by the Constitutional Court in SATAWU v Garvas. His other notable judgments include Mabuza v Mbatha, on the recognition of customary marriage,[11] which the Constitutional Court cited in Bhe v Magistrate, and Magewu v Zozo, on child maintenance, which the Constitutional Court cited in S v M.

Minister of Health v New Clicks[edit]

In 2004, Hlophe presided in Minister of Health v New Clicks, which gave rise to personal as well as legal controversy. In August, Hlophe's court dismissed the application, which was an urgent challenge by pharmaceutical companies to medical pricing regulations newly promulgated by the Minister of Health; the majority judgment was written by Judge James Yekiso, joined by Hlophe, and opposed in a dissenting judgment by Deputy Judge President Jeanette Traverso. When the court was hearing the pharmaceutical companies' application for leave to appeal, Hlophe caused a stir by complaining that legal practitioners were circulating rumours that he had written the majority judgment in Yekiso's name.[12] He apparently linked this misconception to racism, and in the weeks thereafter, he complained publicly about "a calculated attempt to undermine the intellect and talent of African judges".[12]

In the interim, the High Court delayed handing down a decision on the applicants' leave to appeal its judgment. As a result, the applicants took the highly unusual step of approaching the Supreme Court of Appeal directly, effectively leapfrogging the High Court. The Supreme Court agreed to hear both the application for leave to appeal and argument on the merits.[13] After those hearings had taken place, and while the Supreme Court's judgment was reserved, Hlophe handed down the High Court's own ruling in early December: he refused the applicants leave to appeal. This was an extremely surprising decision, because South African courts generally permitted appeals of split judgments as a matter of course.[14] In the ruling, Hlophe castigated the applicants and their counsel, notably Jeremy Gauntlett, for having approached the Supreme Court before the High Court had made its decision.[14] This led the leaders of the Cape Bar Council to issue a lengthy statement defending Gauntlett.[15]

Notwithstanding Hlophe's decision to deny leave to appeal, the Supreme Court of Appeal handed down its own unanimous judgment three weeks later. The Supreme Court, quite contrary to the High Court, not only granted leave to appeal but also upheld the appeal, overturning the High Court's judgment. Judge of Appeal Louis Harms was highly critical of Hlophe's conduct,[13] but, when asked about Harms's remarks, Hlophe told the Star, "To be frank, I couldn't care less."[16]

Western Cape Anti-Eviction Campaign protestors outside the Cape High Court on 10 March 2008

Thubelisha Homes v Various Occupants[edit]

In March 2008, Hlophe handed down judgment in Thubelisha Homes v Various Occupants, in which he controversially awarded the state an eviction order to remove thousands of residents of Joe Slovo from the site of the N2 Gateway Project.[17] The judgment was criticised by the Western Cape Anti-Eviction Campaign;[18] by Pierre de Vos, who called it "completely devoid of compassion and also legally misguided";[19] and by other commentators who questioned its interpretation of the doctrine of legitimate expectations.[20] When the Constitutional Court heard the matter on appeal, Justice Kate O'Regan said that Hlophe's order "really bothers me" insofar as it failed to provide for the relocation of the evicted residents.[21] This concern ultimately led the court to overturn Hlophe's judgment in part: in Residents of Joe Slovo Community v Thubelisha Homes, the Constitutional Court sanctioned the eviction but imposed certain conditions on the state.[22]

2005 racism row[edit]

In February 2005, City Press received a leaked copy of a 43-page report on racism among the lawyers and judges of the Cape Provincial Division; it had been compiled by Hlophe and submitted to the national Minister of Justice, Brigitte Mabandla.[23]

Constitutional Court nominations[edit]

In mid-2009, a private lobby group named the Justice for Hlophe Alliance lodged an unusual "political-style campaign" calling for Hlophe to be appointed as Chief Justice of South Africa after Pius Langa's retirement.[24][25] Observers believed, however, that Hlophe's chances were hurt by a pending complaint against him at the JSC (see below).[26] Sandile Ngcobo became the sole nominee for the Chief Justice position, though Hlophe's supporters continued to position Hlophe as Ngcobo's future successor.[27][28] Hlophe was, however, one of more than 20 candidates shortlisted for possible appointment to four other vacancies on the Constitutional Court bench. Indeed, the Mail & Guardian identified him as a frontrunner.[29] The JSC interviewed him in Kliptown in September 2009 in the presence of a small group of supporters wearing Hlophe-themed T-shirts.[30] His interview was tense – among other things, he was pressed about the pending and past misconduct complaints – and he was not among the seven judges whom the JSC recommended for elevation.[30][31]

Over a decade later, as Chief Justice Mogoeng Mogoeng approached retirement in 2021, Hlophe was again nominated for the Chief Justice position, on that occasion by the Black Lawyers Association, the SA Natives Forum, and Democracy in Action.[32] The Economic Freedom Fighters also endorsed his candidacy.[33] However, he was not shortlisted for the vacancy.[34]

Gross misconduct and impeachment[edit]

In June 2008, the bench of the Constitutional Court lodged a formal complaint against Hlophe at the JSC, alleging that he had attempted improperly to interfere with its deliberations in the matter of Thint v NDPP.[35][36] That matter concerned the ongoing corruption investigation into politician Jacob Zuma, and Justices Bess Nkabinde and Chris Jafta alleged that Hlophe had attempted to sway their judgment in Zuma's favour. These allegations launched a 15-year-long public controversy and protracted multi-party litigation in multiple courts.[37][38][39] At the height of the scandal, Hlophe was placed on special leave between May 2008 and September 2009.[40][41][42] He denied the justices' allegations and claimed that they were part of a political conspiracy against Zuma's allies.[43]

In April 2021, a Judicial Conduct Tribunal concluded unanimously that Hlophe had committed gross and impeachable misconduct in attempting improperly to influence Justices Nkabinde and Jafta. The tribunal, chaired by retired Judge Joop Labuschagne, found that Hlophe's actions violated the Constitution and "seriously threatened" the independence and dignity of the Constitutional Court.[44] In August 2021, this finding was endorsed by the JSC, which referred to the National Assembly its recommendation that Hlophe should be impeached in terms of Section 177 of the Constitution.[45] While Hlophe pursued legal appeals, the JSC recommended in July 2022 that Hlophe should be suspended from judicial office pending impeachment proceedings;[46] President Cyril Ramaphosa effected his suspension in December that year.[47]

Despite further legal challenges by Hlophe, the National Assembly adopted a resolution to impeach him on 21 February 2024.[48] On 5 March, the Sunday Independent reported that President Ramaphosa had written to Hlophe to inform him that his impeachment had been effected on 1 March.[49] Ramaphosa released public confirmation the following day.[50] Hlophe became the first South African judge to be impeached since the end of apartheid.[51]

Other controversies[edit]

Alleged personal attacks[edit]

In 2005 Hlophe was reported to have said that he allocated an Afrikaans language rights case to senior Cape High Court Judge Wilfred Thring "because I knew he would fuck up the trial and then it could be set right on appeal". He was reported to have repeated this in front of numerous witnesses, including senior advocate Norman Arendse SC, who wrote to Chief Justice Pius Langa about the incident. Denying he had made the remark, Hlophe claimed there was a smear campaign against him.[52]

Also in 2005, Hlophe was reported to have called a Cape Town attorney, Joshua Greeff, a "piece of white shit who is not fit to walk in the corridors of the High Court". He also suggested that Greeff should go back to Holland. Greeff is not Dutch. Hlophe denied making the remarks.[53]

In November 2007 Hlophe was reported to have written to the Department of Justice demanding that his official motor vehicle, a three-year-old Mercedes-Benz, be upgraded to a Porsche Cayenne. He argued that his position as Judge President warranted this upgrade. When contacted by members of the press, Hlophe is reported to have asked "What has this got to do with you? My purchase of a vehicle has got absolutely nothing to do with you," It is reported that when reminded that the car would be purchased using taxpayers' money, he stated that it would "never, ever be approved". It nonetheless was.

On 30 July 2009, Judge Hlophe was served summons by US law professor Winston Nagan. Nagan was demanding R6-million in damages from Hlophe, who, he says, "insulted and defamed" him.[54] When professor Nagan's right to sue Judge Hlophe was upheld by the Western Cape High Court, Paul Ngobeni a long-standing friend and supporter of Judge Hlophe, was outraged. "It’s horrifying! It’s outrageous! Here you have a foreigner, who comes out of the United States, a country where there is an absolute prohibition against suing judges for their judgement," exclaimed Paul Ngobeni, who, like Professor Nagan, was born in South Africa and subsequently became a permanent resident of the United States. Paul Ngobeni also seems to be unaware that Judge Hlophe was not being sued for a judgement, but for derogatory statements allegedly made regarding the work habits and ethics of Professor Nagan.[55]

Conflict of interest complaints[edit]

In June 2006, the JSC was asked to investigate complaints that Hlophe's son received a bursary from a large Cape Town firm of attorneys, Smith Tabata Buchanan Boyes (STBB).[56][57] Derek Wille, former STBB partner and a university friend of Hlophe, said the payments had come from a bursary scheme "to help disadvantaged students". Hlophe had appointed Wille to the bench as an acting judge on a number of occasions. Reported to the JSC for a possible conflict of interests, he claimed he did not know who was paying for his son's education. The JSC accepted his word.

In early 2006 it was reported that Hlophe had, without the necessary Ministerial consent, taken a remunerated position on the board of Oasis, an asset management company. It was subsequently reported that Hlophe had, whilst on the Oasis payroll, considered a matter involving one of his colleagues, Judge Siraj Desai and given Oasis permission to sue him. In July 2006 Justice Minister Brigitte Mabandla permitted Hlophe four months' leave of absence.[58]

Complaint by Patricia Goliath[edit]

On 15 January 2020 Western Cape Deputy Judge President Patricia Goliath lodged a complaint with the Judicial Services Commission (JSC) alleging a wide range of serious incidents of misconduct by Hlophe.[59] These included allegations of "attempting to influence judicial appointments, assaulting fellow judges, sexual impropriety and creating a climate of hostility and fear in chambers."[60] One such notable incidence was in the 2017 Earthlife Africa judgment where Hlophe is accused of acting in a biased manner so as to protect then South African President Jacob Zuma. The case involved a controversial deal to procure nuclear power plants from Russia.[61] In response to the incident the General Council of the Bar urged Hlophe and his wife to request special leave pending deliberations into the complaint.[62]

Consideration by the Judicial Service Commission[edit]

Hlophe became the subject of allegations of misconduct on a number of matters during 2005–2006, which were referred for investigation by the Judicial Service Commission.[63][64] The JSC considered the following four complaints: Firstly, that Hlophe had accepted payments from the Oasis Group without statutorily required Ministerial consent; secondly that he had improperly granted permission, while in receipt of such payments, for Oasis to sue Judge Desai for defamation; thirdly that he had subjected a legal practitioner to a racist insult; and finally that he had made disparaging remarks to counsel about a fellow judge to whom the Judge President had allocated a contentious case.

In October 2007, in a divided vote, the Commission decided by an undisclosed majority that there was insufficient evidence to proceed with a public enquiry into the allegations.

The decision was the subject of controversy and was criticised by, amongst others, former Constitutional and Appeal Court Judge Johann Kriegler, whose criticism was published in the Sunday Times, a widely read, nationally circulated newspaper.[65]

On 9 October 2007, nine senior members of the Cape Bar Council wrote to the Cape Town- based Cape Times newspaper in support of former constitutional and appeals court judge Johann Kriegler's comment at the weekend that Hlophe was "unfit for the Bench".

Responding to the controversy the Judicial Services Commission on 18 October 2007 issued an explanation of their decision[66] which stated that they had considered the four complaints. It pointed out that it had no general disciplinary jurisdiction, being limited by section 177 of the South African Constitution to the ability to find a judge guilty of "gross misconduct". In this case, they said, the only charge that might merit that finding was that Hlophe had received payments from Oasis when not permitted to do so. With respect to that complaint the JSC stated that Hlophe had alleged that he had received oral permission from the (by then late) Minister of Justice, that the Ministry of Justice had stated that "... it could not say that oral permission had not been given" and that there was accordingly "... no evidence of the absence of consent". The majority of the JSC accordingly found that "... the facts did not make out a prima facie case". The JSC stated further that "[a]lthough not amounting, in the view of the majority of the Commission, to impeachable conduct, the grant of leave to Oasis to sue Judge Desai (leave of the Court to sue a Judge being a legal requirement) was considered by all Commissioners to be a matter warranting adverse comment". With regard to the alleged racist incident the JSC stated that the complainant had asked that the matter not be pursued. Finally, with regard to the alleged disparagement of a fellow judge the JSC recorded that the senior counsel allegedly able to support the allegation had submitted an affidavit which did not in fact do so. It recorded that Hlophe had admitted discussing the matter with another senior counsel, and had conceded that that was improper, apologising for doing so.

Members of the faculty of law at the University of Cape Town also questioned whether Cape Judge President John Hlophe was fit to occupy his position.[67][68]

Conversely, the Black Lawyers Association criticised Judge Kriegler for his "... unsolicited attack ..." on Judge Hlophe and by implication the Judicial Services Committee, which had, it stated, cleared him. "In allowing himself to comment at all upon a matter with which the JSC was seized, and of which it has now lawfully disposed, Judge Kriegler placed himself in contempt of the lawfully constituted authority, and evinced disrespect for the members of that august body, not excluding the Chief Justice," said the BLA's judicial committee chairperson, Dumisa Ntsebeza SC.[69]

On 19 April 2010 the high court in Cape Town found the proceedings of the Judicial Service Commission (JSC), where it dismissed a complaint of gross misconduct against Western Cape Judge President John Hlophe, were "unconstitutional and invalid".[70]

Personal life[edit]

Hlophe was formerly married to Nompumelelo Hlophe (née Shongwe), with whom he had children.[1] He was later married to Judge Gayaat Salie-Hlophe between 2015 and 2022.[71] One of his children, Thuthuka Hlophe, pled guilty to fraud in 2012.[72][73]

References[edit]

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  2. ^ a b c d e f g h i j "From humble beginnings..." Sowetan. 3 August 2009. Retrieved 8 June 2024.
  3. ^ "Judge Hlophe's humble beginnings". IOL. 27 August 2009. Retrieved 8 June 2024.
  4. ^ "The story of John Hlophe". The Witness. 27 August 2009. Retrieved 8 June 2024.
  5. ^ a b c d Thamm, Marianne (7 September 2021). "The rise and (slow) fall of John Hlophe, the judge who almost took the judiciary down with him". Daily Maverick. Retrieved 8 June 2024.
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  19. ^ Vos, Pierre de (11 March 2008). "No compassion for people who do not drive a Porsche?". Constitutionally Speaking. Retrieved 8 June 2024.
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  23. ^ Mkhabela, Mpumelelo (13 February 2005). "'Racist' judge sparks row". News24. Retrieved 8 June 2024.
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  31. ^ "No place for Hlophe on Concourt shortlist". The Mail & Guardian. 22 September 2009. Retrieved 8 June 2024.
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  33. ^ "EFF throws weight behind Hlophe to be next Chief Justice". SABC News. 5 October 2021. Retrieved 8 June 2024.
  34. ^ Basson, Adriaan (1 November 2021). "Hlophe not shortlisted for chief justice vacancy". News24. Retrieved 8 June 2024.
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  37. ^ Thamm, Marianne (16 January 2023). "John Hlophe — the Judge President who fought the law, but the law won in the end". Daily Maverick. Retrieved 8 June 2024.
  38. ^ Tilley, Alison (6 September 2019). "Ten years later, still no action on Hlophe complaint". GroundUp News. Retrieved 8 June 2024.
  39. ^ Rabkin, Franny (15 January 2023). "Judging history: The great, grey, grievous John Hlophe saga". Sunday Times. Retrieved 8 June 2024.
  40. ^ "Back to work for Hlophe". News24. 2 September 2009. Retrieved 28 January 2021.
  41. ^ Dawes, Nic; Alcock, Sello S. (1 February 2009). "Courting trouble". The Mail & Guardian. Retrieved 3 December 2023.
  42. ^ "Hlophe: I'm coming back to work". The Mail & Guardian. 10 July 2009. Retrieved 8 June 2024.
  43. ^ "'I am not going to shake a white man's hand'". The Mail & Guardian. 8 August 2009. Retrieved 8 June 2024.
  44. ^ Maughan, Karyn (10 April 2021). "Hlophe found guilty of gross misconduct for trying to sway two ConCourt justices in Zuma case". News24. Retrieved 8 June 2024.
  45. ^ Thamm, Marianne (25 August 2021). "Twelve years later: Western Cape Judge President John Hlophe finally faces impeachment and removal from the Bench". Daily Maverick. Retrieved 8 June 2024.
  46. ^ Maughan, Karyn (25 July 2022). "Judicial Service Commission recommends Hlophe's suspension to Ramaphosa". News24. Retrieved 8 June 2024.
  47. ^ Ferreira, Emsie (14 December 2022). "Ramaphosa suspends Judge President Hlophe". The Mail & Guardian. Retrieved 8 June 2024.
  48. ^ Thamm, Marianne (21 February 2024). "Huge majority of MPs vote to impeach Western Cape Judge President Hlophe". Daily Maverick. Retrieved 8 June 2024.
  49. ^ "Ramaphosa removes Judge President Hlophe from office". Sunday Independent. 5 March 2024. Retrieved 8 June 2024.
  50. ^ Gerber, Jan (6 March 2024). "Hlophe, Motata officially removed from the Bench – Presidency". News24. Retrieved 8 June 2024.
  51. ^ "John Hlophe: South Africa's parliament impeaches top judge". BBC News. 22 February 2024. Retrieved 8 June 2024.
  52. ^ Judge puts Cape race row papers away for good IOL
  53. ^ New twist in Hlophe saga[permanent dead link] News24
  54. ^ Hlophe Served with R6m n's Summons Times Live
  55. ^ [1][permanent dead link] Eyewitness News
  56. ^ More on Judge Hlophe's son Cape Business News
  57. ^ Law firm defends Hlophe bursary[permanent dead link] HWB Communications
  58. ^ Racism in the Judiciary - Special report Business Day
  59. ^ Vos, Pierre De. "ANALYSIS: Cape High Court faces credibility crisis over Hlophe allegations". Daily Maverick. Retrieved 23 January 2020.
  60. ^ Thamm, Marianne (22 January 2020). "South Africa: Sex, Lies, Physical Assault and Court Rigging - All in a Day's Work for John Hlophe, Claims His Deputy". allAfrica.com. Retrieved 23 January 2020.
  61. ^ Rabkin, Franny (23 January 2020). "Hlophe complaint is an eerie echo". Mail & Guardian. Retrieved 4 February 2020.
  62. ^ Petersen, Tammy (4 February 2020). "Advocates' body wants Judge President Hlophe and Judge Salie-Hlophe to take special leave". News24. Retrieved 4 February 2020.
  63. ^ The little lawyer in the ring with the head judge Sunday Times
  64. ^ Hearings on Hlophe's conduct delayed IOL
  65. ^ Hlophe has no place on Bench, say legal gurus IOL
  66. ^ "Legalbrief Today Home Page". legalbrief.co.za. Retrieved 9 January 2018.
  67. ^ UCT law professors in attack on Hlophe IOL
  68. ^ 'Hlophe is a burden on the Bench' IOL
  69. ^ Hlophe may have R2m reasons to ride out storm IOL
  70. ^ Court rules Hlophe proceedings were invalid M&G
  71. ^ Petersen, Tammy (10 January 2023). "Settled: Embattled Western Cape judges Hlophe and Salie finalise divorce". News24. Retrieved 6 January 2024.
  72. ^ "Judge Hlophe's son fined for fraud". The Mail & Guardian. 26 June 2012. Retrieved 8 June 2024.
  73. ^ "Judge Hlophe's son in court for R418 000 fraud". The Witness. 19 March 2009. Retrieved 8 June 2024.

External links[edit]