President Cyril Ramaphosa’s suspension of Western Cape judge president John Hlophe on Wednesday comes nearly 15 years after the complaint that led to it.
It is a historic moment for the judiciary, with its systems of accountability finally biting, as well as for the Western Cape High Court, which Hlophe has led since 2000. Only two of its current judges were appointed before he became judge president.
But the move may not stabilise the beleaguered Cape division as deputy judge president Patricia Goliath has been appointed to act as judge president and — due to her own clash with Hlophe — may soon be facing suspension herself.
In a statement on Wednesday, the presidency said Hlophe’s suspension was effective immediately, pending a decision by parliament on his impeachment. He must also complete his part-heard matters and his outstanding judgments.
Almost 15 years ago, all the then justices of the Constitutional Court laid a complaint of judicial misconduct against Hlophe. In May 2008, the entire bench of the apex court and its acting justices complained that Hlophe had approached two of them in an attempt to influence the outcome of a judgment then pending before their court, related to corruption charges against former president Jacob Zuma.
Just as the prosecution of the charges against Zuma has been delayed by seemingly endless intervening litigation, the finalisation of the complaint against Hlophe has been similarly beset with delays — mostly due to litigation also, though the judge president himself was not responsible for much of it.
But if there is to be more litigation, now this would happen with Hlophe litigating from the outside, no longer at the helm of the Western Cape division.
Eventually, a judicial conduct tribunal (JCT) found him guilty of gross misconduct in April last year. The JSC referred him to parliament for impeachment in August last year.
The presidency said on Wednesday: “The JCT established that judge Hlophe’s behaviour seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court and undermined public confidence in the judicial system.”
Hlophe has challenged the JCT’s finding and the decision of the JSC to refer him to parliament for impeachment in court. The high court dismissed his case but granted him leave to appeal to the Supreme Court of Appeal, which is yet to hear the appeal. He has also challenged the JSC’s decision to recommend his suspension.
With his suspension, more litigation is likely. The presidency said Ramaphosa had taken more than four months to decide whether to suspend, because “due to the long history and complexity of the matter, Ramaphosa took time to carefully consider all the permutations of the JSC recommendations, including obtaining guidance from an independent legal opinion”.
But if there were to be more litigation, that would happen with Hlophe litigating from the outside, no longer at the helm of the Western Cape division.
After an initial period of voluntary special leave, Hlophe returned to work in February 2009 and has been in charge of the Western Cape High Court since.
Even as the tribunal found him guilty of gross misconduct and the JSC referred him to parliament, Hlophe continued discharging his functions as judge president — hearing cases, assigning judges to hear cases and (on-and-off depending on what was happening with the disciplinary process) sitting as a commissioner on the JSC to interview and recommend judges for appointment to his court.
Since his return from special leave, there have been two more complaints against him: one in January 2020 — an ugly fight with Goliath, which pulled in at least 10 other judges of the division; and another in 2021 from an advocate at the Cape Bar, who alleged he prejudged a case the advocate was due to argue, denied his client his right of access to court and swore at him in chambers. Hlophe has yet to say on this second complaint.
On the dispute with Goliath, the appeals committee of the judicial conduct committee has recommended that a tribunal be established in respect of the allegations and counter-allegations between them.
The JSC must now decide whether to endorse that recommendation and whether to recommend suspension — once again for Hlophe but also, significantly, for Goliath. JSC spokesperson Sesi Baloyi said the JSC would meet on this issue on January 26.
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