Two judges were impeached this year — the first judicial impeachments in post-apartheid South Africa. In February, parliament voted by an overwhelming majority to remove Western Cape judge president John Hlophe and Gauteng High Court judge Nkola Motata. In March, the removals were formalised by President Cyril Ramaphosa.
Considering the tortured and winding path to get there — including 15 years of litigation and a last-minute, last-ditch, court case by Hlophe — the impeachments themselves happened with little fanfare. Still, the significance of the moment should not be understated. It took long, but it happened, showing the ultimate mechanism to hold judges accountable under the constitution works.
It was only a matter of months before Hlophe re-emerged in a new public role — as an MP for the new-kid-on-the-block, the MK Party. In the May elections, the party dislodged the EFF as the third biggest political party in parliament. And because the DA, the second biggest, went into a governing coalition with the ANC, the MK Party became the official opposition.
It was a year of firsts for the judiciary. Hlophe also became the first impeached judge to be designated by the National Assembly to sit on the Judicial Service Commission (JSC). The body that found him unfit to be a judge in February found nothing wrong in July with him representing it to interview and recommend other judges for appointment.
The move appalled many. Others were gleeful, particularly because there was no immediately apparent constitutional provision that was breached by the designation. In another first, there was a debate in the National Assembly ahead of the JSC designations. Previously, JSC designations were a formality. This time, the DA protested that the house would be acting irrationally and unreasonably to send Hlophe there.
The ANC hummed and hawed about a lacuna in the rules, and how things had always been done, and voted to support Hlophe.
“The streets have spoken,” was the triumphant riposte from the Al Jama-ah party.
The DA, Freedom Under Law and Corruption Watch went urgently to court to review the decision. The DA and Corruption Watch case was brought in two parts: Part A was to interdict Hlophe from participating in the JSC interviews in October — which would include interviews for Hlophe’s old post of judge president of the Western Cape High Court. Part B was about the lawfulness of his designation.
They succeeded in Part A. The Western Cape court granted an interim order preventing Hlophe from participating in JSC processes until Part B had been finalised. Part B is still to be heard.
But that was not the end of it. The MK Party went to the Gauteng High Court on the eve of the JSC interviews and tried to interdict them from going ahead. The application failed.
Then on the first day of the interviews, the MK Party announced Hlophe had withdrawn from the JSC. Hlophe said publicly the party would field a new candidate to sit on the JSC while litigation was ongoing. Then, in a head-scratching move, Hlophe and the MK Party sought to appeal Part A, saying the MK Party would nominate no-one else but Hlophe to the JSC. In court, counsel for Corruption Watch Geoff Budlender SC said an appeal was “utterly pointless”. On Friday, this was dismissed.
The court also gave a punitive costs order because of statements made by Hlophe and the MK Party about the courts and the other parties to the litigation.
It quoted the MK Party's media statement that the court's earlier judgment was “incompetent, irrational, absurd and blatantly political”, and said: “This wanton attack on the judiciary cannot and shall not be tolerated by our courts in the interest of preserving the rule of law safeguarding the institutional integrity of our judicial system.”
Meanwhile, with no interdict in place, the JSC pressed ahead with interviews, accomplishing another first: the first woman recommended to lead the Western Cape High Court, after 23 years of Hlophe at the helm. Supreme Court of Appeal justice Nolwazi Mabindla-Boqwana was given the nod for judge president after a marathon day of interviews in which an unprecedented seven candidates vied to lead the “notoriously troubled” (as chief justice Mandisa Maya said in the interviews) division.
The day’s interviews revealed that “troubled” was putting it mildly. A letter to the JSC from one of the other judges in the division, Rosheni Allie, about the leadership of acting judge president Patricia Goliath, laid bare the toxic working conditions that had arisen under Hlophe’s leadership and which Goliath had seemingly not managed to overcome in her nearly two years at the helm.
The Presidency has yet to formally make the appointments recommended by the JSC in October, so Mabindla-Boqwana has not taken up her post yet.
But perhaps the biggest first this year was the announcement by the president of his appointment of the first woman chief justice in South Africa. From September 1, Maya took the mantle as leader of the judiciary and this week will mark 100 days in office. The October interviews were her first to chair officially as the chief justice, though she has chaired the JSC before in other capacities.
Soon after, she toured the country, visiting various divisions of the high court. This had never been done before, even after the constitution was amended to make the chief justice head of the whole judiciary (and not just the head of the ConCourt).
The final first: two woman justices have been appointed to act at the apex court in 2025 — meaning that for the first time in its history, the bench of South Africa’s apex court will be composed of a majority of woman.
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