Judge Hlophe must be impeached, Judicial Service Commission rules

This will be the first time in SA’s post-1994 history that the JSC has made such a recommendation

25 August 2021 - 17:52 By Franny Rabkin
The Judicial Service Commission has recommended impeachment for Western Cape judge president John Hlophe. File photo.
The Judicial Service Commission has recommended impeachment for Western Cape judge president John Hlophe. File photo.
Image: Trevor Samson

A substantial majority of the Judicial Service Commission (JSC) voted to uphold a gross misconduct finding against Western Cape Judge President John Hlophe, paving the way for an impeachment process by parliament.

This will be the first time in South Africa’s post-1994 history that the JSC has referred a judge to parliament for possible impeachment.

TimesLIVE understands that a majority of eight members of the JSC voted to find Hlophe guilty, while only four voted against.

The finding of gross misconduct earlier this year by a Judicial Conduct Tribunal related to a 2008 complaint by all the then-justices of the Constitutional Court.

The justices complained that the Western Cape judge president had sought to influence the outcome of a pending judgment relating to corruption charges against former president Jacob Zuma.

Zuma is on trial for the same charges.

At the time, Zuma he was president of the ANC and the Con Court judgment was widely viewed as crucial to his prospects of becoming president of SA.

The JSC said it would be furnishing parliament with copies of both its majority and minority views. It has also asked those who participated at the tribunal to submit written submissions on whether it should recommend to President Cyril Ramaphosa that Hlophe be suspended, pending an impeachment decision by parliament.

After years of litigation, the 13-year-old complaint was finally heard by a Judicial Conduct Tribunal last year. The tribunal found that Hlophe had improperly sought to influence two of the highest court’s justices — Bess Nkabinde and Chris Jafta — to violate their oaths of office.

Its report said that during two separate visits to the Constitutional Court, Hlophe had, uninvited, raised the Zuma cases and said:

  • the Supreme Court of Appeal’s judgment was wrong;
  • there was no case against Zuma; and
  • Zuma was being persecuted just as he [Hlophe] had been persecuted.

To Nkabinde, he “bragged” about his political connections — said the tribunal — and said that people were going to lose their jobs once Zuma became president.

To Jafta, after saying the SCA had got it wrong, he said the now infamous wordssesithembele kinina”.

The words, in isiZulu, were uttered by Hlophe at a meeting with Jafta in 2008. According to a witness at the tribunal, the words could mean variously “we put our confidence in you”, “we have faith in you”, “we put our trust in you”, “we trust in you”, “we rely upon [or on] you”, or “we are pinning our hope on you”.

While Hlophe had denied some of the statements that Nkabinde had alleged, the panel said that, on a balance of probabilities, it believed her. The tribunal’s panel — a three-person panel chaired by retired judge Joop Labuschagne — said the “irresistible” inference was that there was an attempt to influence.