Stalingrad has fallen: After 15 years and 14 court cases, 91% of MPs vote for Hlophe’s removal
Karyn Maughan and Jan Gerber
John Hlophe, who became the first judge in a democratic South Africa to be removed.
Nelius Rademan/Gallo Images/Foto24
- In 2008, the Constitutional Court collectively accused then Western Cape Judge President John Hlophe of trying to sway two of its justices to rule in favour of the then ANC president Jacob Zuma in one of his corruption prosecution challenges.
- The Judicial Service Commission’s (JSC) initial finding that the accusations against Hlophe did not warrant a gross misconduct investigation was successfully overturned in court in 2011, but it would take years for the JSC to actually proceed with that litigation-dogged probe.
- Now, almost three years after a JSC Tribunal found that Hlophe should face removal from office, well over two-thirds of National Assembly MPs have voted in support of his impeachment.
It’s taken 15 years of disrupted Judicial Service Commission (JSC) proceedings and 14 increasingly desperate court cases – but, after 91% of MPs in the National Assembly voted in favour of his removal, Western Cape Judge President John Hlophe has been removed from the Bench.
The Constitution required two-thirds of MPs to vote in favour of Hlophe’s removal for the National Assembly to recommend to President Cyril Ramaphosa that he be stripped of his position on the Bench and his judicial salary for life (which was R192 000 a month).
Ramaphosa will then formally notify Hlophe that he is no longer a judge. He will do the same with Judge Nkola Motata, whose removal from office was supported by 296 MPs and opposed by one. The president doesn’t have any discretion in the matter.
While Motata was impeached for being involved in a well-documented drunk driving accident and then using false claims of racism to shield himself from legitimate scrutiny, Hlophe was removed after being found guilty of violating Section 165 of the Constitution, which is focused on preserving the independence of the judiciary.
African Independent Congress MP Steven Jafta on Wednesday quoted late Chief Justice Pius Langa’s scathing assessment of Hlophe’s attempt to persuade Constitutional Court justices Chris Jafta and Bess Nkabinde to rule in favour of then ANC president Jacob Zuma in 2008:
“The attempt to influence Nkabinde and Jafta was calculated to have an impact, not only on the individual decisions of the judges concerned, but on the capacity of the Constitutional Court as a whole to adjudicate in a manner that ensures its independence, impartiality, dignity, accessibility and effectiveness as required by Section 165 of the Constitution,” Langa had stated.
In other words, had Hlophe succeeded in persuading the two justices to find that the search and seizure warrants used by the then Scorpions to seize 93 000 pages of corruption trial evidence against Zuma were not legally valid, he would not only have unlawfully ensured a ruling in favour of the soon-to-be president, he would also have destroyed the apex court’s ability to adjudicate cases fairly – and without fear or favour.
This was an immensely serious charge.
READ | Hlophe becomes first judge in SA history to be impeached, stripped of ‘salary for life’
But the JSC initially decided, after not cross-examining Hlophe, Jafta or Nkabinde, that the Constitutional Court’s complaint against the Judge President did not warrant an impeachment inquiry.
That decision would be overturned by the courts in 2011, but armed with untrammelled legal funding from the Zuma administration and with the JSC seemingly not interested in ensuring that the accusations against him were resolved, Hlophe was able to avoid answering for his conduct for almost a decade.
It was only in 2020 that he finally faced an impeachment tribunal over his efforts to sway Jafta and Nkabinde.
In court papers and television interviews, Hlophe has continued to insist that his respective conversations with the two justices were innocent academic debates about the issue of legal privilege.
The issue of attorney-client privilege was one of the key challenges raised by Zuma’s lawyers to the legality of the Scorpions raids because the authorities had seized multiple documents from Zuma’s then-attorney Michael Hulley and his former lawyer Julaika Mohammed.
Nkabinde – who had been chosen by the Constitutional Court as the justice tasked with writing a “note” on the privilege issue – would later testify that Hlophe had telephonically asked her for a meeting and said he “had a mandate and that they could talk about privilege”.
There is no evidence that Hlophe ever delivered a ruling on legal privilege or wrote about it as an academic.
Nkabinde had no prior connection to Hlophe and grew wary after Jafta, who Hlophe had visited four weeks before, warned her that the Judge President may try to influence her.
According to Jafta, Hlophe told him that the cases involving Zuma needed to be looked at “properly” because he believed Zuma was being persecuted just as he (Hlophe) had been persecuted.
Jafta said Hlophe told him, “Sesithembele kinina”, meaning, “We pin our hopes on you.”
Nkabinde testified that Hlophe told her when he visited her in chambers that the reason he was there, among other things, was that “a concern had been raised that people who are appointed at the Constitutional Court should understand our history”.
Asked who these people were, Hlophe responded that “he has connection with some ministers who he, from time to time, advised”.
According to Nkabinde’s evidence, Hlophe then started talking about the Zuma case and said that it was “an important case and that the issue of privilege was also important”.
“It had to be decided properly because the prosecution case rested on that aspect of the case,” she said he stated.
Nkabinde said she responded by snapping, “My brother, you know that you cannot talk about this case. You have not been involved in the case, you have not sat on it and you are not a member of the court to come and talk about the case.”
She testified that Hlophe had then told her that he did not mean to interfere with her work but he went on to explain “that the point is that there is no case against Mr Zuma”.
READ | Parliament slams Hlophe’s ‘last-minute’ bid to block vote on his removal as ‘not strong’
He repeated that “Mr Zuma has been persecuted, just as he [Hlophe] was persecuted”.
Significantly, Nkabinde also testified that Hlophe had told her that he had a “list of intelligence” that contained the names of everyone who had benefitted from the Arms Deal that Zuma is now facing trial over – and “many people” could lose their jobs when he became president.
Hlophe’s lawyers failed to dent her account of her meeting with him, which fundamentally undermined his claims that the pair had an innocent academic discussion.
Retired Judge Joop Labuschagne and his panel accepted that testimony when they found that Hlophe had tried to sway Nkabinde and Jafta and, in so doing, had breached Section 165 of the Constitution.
This, they found, amounted to a serious threat and interference with the Constitutional Court’s independence and was indeed a basis for Hlophe to be removed from office.
While then JSC Commissioner and EFF politician Dali Mpofu had vehemently argued that the commission should not support the impeachable findings made against Hlophe, he failed to convince the body’s majority not to endorse the Labuschagne Tribunal report – which the Judge President later tried and failed to challenge in court.
Hlophe’s legal arguments then became increasingly desperate and precarious, much like those of the erstwhile president whose cause he had advocated for: Zuma.
In his most recent efforts to challenge the impeachment process against him in the Constitutional Court, Hlophe contends that the National Assembly must conduct its own investigation into the findings made against him, with all his legal costs in that process being funded by the state.
Given that Hlophe reportedly could not afford to pay for the photocopies needed in his appeal against the full Bench ruling that he was lawfully found guilty of gross misconduct, his attempts to force the government to pay his spiralling litigation costs is unsurprising.
But if he was the legal expert he claimed to be, Hlophe must know that he has no hope of Parliament embarking on a judicial inquiry process that would unlawfully usurp the JSC’s power to investigate judges. And the vast bulk of MPs in the National Assembly made it clear that they were not willing to support that argument.
READ | ‘Enough already’: Freedom Under Law blasts Hlophe’s demand for second misconduct inquiry
Citing the Gauteng High Court’s full Bench ruling on Hlophe’s failed challenge to the process that led to him being voted out of office on Wednesday, the chairperson of the Portfolio Committee on Justice and Correctional Services, Bulelani Magwanishe, stated that: “The decision as whether misconduct occurred is that of the JSC alone. There is no provision… for a hearing of the complaint by the National Assembly”.
He added: “As we take this decision on this matter, it is important that we remind ourselves that our decision must be rational. The process of the removal of a judge in a democratic South Africa is not an occasion for celebration. This process is one of accountability… this process of accountability has emphasised the point that to whom much is given, much is required”.
DA MP Glynnis Breytenbach subsequently told the National Assembly that Hlophe’s unsuccessful last-ditch bid to interdict Parliament from voting on his removal had shown exactly why he should be removed from office.
“He was always fighting a losing battle, but in doing so he has underscored that he cares nothing at all for the judiciary, its image, nor its integrity. He has again placed his own narrow personal interests above those of the South African people. He has demonstrated, again, that he is wholly unsuitable to be a judge,” she said.
Martin Plaut 