John Hlophe

"Hlophe" redirects here. For the gospel singer with the same surname, see Nothando Hlophe.

John Hlophe
Judge President of the Western Cape High Court
In office 1 May 2000 – 1 March 2024
Appointed by	Thabo Mbeki
Deputy	Jeanette Traverso Patricia Goliath
Preceded by	Edwin King
Deputy Judge President of the Western Cape High Court
In office 18 May 1999 – 30 April 2000
Appointed by	Nelson Mandela
Preceded by	Edwin King
Succeeded by	Jeanette Traverso
Judge of the High Court
In office 1 January 1995 – 1 March 2024
Appointed by	Nelson Mandela
Division	Western Cape
Personal details
Born	Mandlakayise John Hlophe (1959-05-19)19 May 1959 Stanger, Natal, Union of South Africa
Spouse	Gayaat Salie-Hlophe ​ ​ (m. 2015; div. 2022)​
Education	Ohlange High School
Alma mater	University of Natal University of Fort Hare Cambridge University (LLM, PhD)

Mandlakayise John Hlophe (born 1 January 1959) is the former Judge President of the Western Cape Division of the High Court of South Africa. He is the first Judge President to have ever been removed from office through impeachment proceedings in post-1994 democratic South Africa.

Early life and education

Hlophe was born on 19 May 1959 in Madundube, a rural area of Stanger in the former Natal Province (present-day KwaZulu-Natal). 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. 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. He had one elder brother. Though both of his parents died in 1980, his mother's employer, businessman Ian Smeaton, continued to sponsor his education.

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. Thereafter 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. 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. He completed his PhD in 1988.

Academic career

Later in 1988, Hlophe joined the faculty of the University of Natal, becoming a lecturer in law at the university's Pietermaritzburg campus. He worked there for two years before, in 1990, he moved to Mthatha, Eastern Cape to join the University of Transkei. He was promoted to professor and head of public law in 1992. As an academic, he was a founding member of the university's legal aid clinic and the chief editor of the Transkei Law Journal. 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.

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. In the interim, in 1993, he was admitted as an advocate of the Supreme Court of Transkei.

Cape High Court: 1995–2024

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

Gross misconduct and impeachment

Main article: John Hlophe gross misconduct

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. 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. At the height of the scandal, Hlophe was placed on special leave between May 2008 and September 2009. He denied the judges' allegations and claimed that they were the result of a political conspiracy against Zuma's allies.

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. 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.

Despite further legal challenges by Hlophe, the National Assembly adopted a resolution to impeach him on 21 February 2024. 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. Ramaphosa released public confirmation the following day. Hlophe became the first South African judge to be impeached since the end of apartheid.

Other controversies

In July 2006 Justice Minister Brigitte Mabandla permitted Hlophe four months' leave of absence.

Jurisprudence

In a 2004 case between Health Minister Manto Tshabalala-Msimang and elements of the pharmaceutical industry, Hlophe was accused of "unreasonably" delaying his judgement on leave to appeal. In an unprecedented step the unsuccessful party in the matter had been forced by Hlophe's failure to either grant or refuse leave to appeal and had applied directly to the Supreme Court of Appeal of South Africa for leave to appeal. Having been informed that the application would be made directly to the Supreme Court of Appeal, he refused leave to appeal days before the Supreme Court of Appeal considered the matter. His ruling was summarily overturned by the Supreme Court of Appeal in a judgment that was harshly critical of him. Hlophe was reported to have said with regard to the ruling that he "... couldn’t care less." A complaint about his conduct was laid with the Judicial Service Commission.

On 10 March 2008, Judge Hlophe, in a Cape High Court ruling, ordered the eviction of approximately 20,000 shack dwellers residing in Joe Slovo in Langa to make way for the controversial N2 Gateway Housing Project. The ruling was subsequently criticised by residents themselves, the Western Cape Anti-Eviction Campaign, and well-known legal and constitutional court experts such as Pierre de Vos. In August 2008, Joe Slovo residents took their appeal to the Constituational Court which criticised the ruling by Hlophe. Concourt Justice Kate O'Regan stated that "It’s one of the things that really bothers me … I couldn’t imagine an order for eviction that didn’t set out where and how the respondents would be accommodated,"

Racism allegations

In 2004 Hlophe wrote a report to Chief Justice Pius Langa alleging racism at the Cape Bar. He also accused his deputy, Deputy Judge President Jeanette Traverso, of racism. In the aftermath of controversy as to the authorship of a majority judgment in the name of Judge NJ Yekiso in the same matter that had attracted the Supreme Court of Appeal's censure, Hlophe accused certain white judges and leading members of the Cape Bar of racism in a 43-page report submitted to the Minister of Justice in November 2004.

Alleged personal attacks

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.

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.

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. 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.

Conflict of interest complaints

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). 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.

Complaint by Patricia Goliath

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. These included allegations of "attempting to influence judicial appointments, assaulting fellow judges, sexual impropriety and creating a climate of hostility and fear in chambers." 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. 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.

Consideration by the Judicial Service Commission

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. 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.

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 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.

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.

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".

Personal life

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

External links

• The Hlophe Saga: Step by Step Legalbrief Today
• Cape High Court Judgement for the Joe Slovo/N2 Gateway evictions case (PDF) Western Cape Anti-Eviction Campaign