It took 16 years but SA has impeached a senior judge

Former Western Cape judge president John Mandlakayise Hlophe has become one of the first two members of South Africa’s judiciary to be impeached since the country became a constitutional democracy in 1994. A vote in parliament in late February 2024 stripped him of his title and barred him from accessing his retirement package. Judges can earn as much as R2 million (over US$100,000) a year in retirement. Narnia Bohler-Muller, a constitutional law expert, answers some questions about the impeachment.

What were the high and low moments of his career?

Hlophe was the first black judge appointed to the bench in 1995 and also the first who came from an academic background. A mere five years later, in 2000, he became the judge president of the Western Cape High Court.

Hlophe has been both brilliant and controversial – on and off the bench.

The low points included these:

• On his appointment as judge president he was also appointed as a non-executive director of Oasis’s Crescent Retirement Fund, receiving about R500,000 (US$26,000) in consultancy fees, which he did not initially declare to the South African Revenue Service or the justice minister.
• In 2004, the Supreme Court of Appeal overturned his judgment in favour of the then minister of health after finding that Hlophe had denied pharmaceutical companies the right to a fair hearing by unreasonably delaying his decision on their appeal application.
• In February 2005 Hlophe handed the then justice minister a report on alleged racism in the Cape Provincial Division. This document set out a range of allegations against colleagues. He also accused the late former chief justice Pius Langa of following a political agenda, and former chief justice Mogoeng Mogoeng of being an Islamophobe and a liar.
• In 2007 Hlophe asked government to buy him a Porsche in keeping with his status. Judges in South Africa drive Mercedes-Benz cars. A Porsche would have been more expensive and extravagant.
• In 2008 the judges of the Constitutional Court filed a complaint of judicial misconduct against Hlophe on the grounds that he had sought to influence the outcome of a matter relating to then deputy president Jacob Zuma’s corruption charges. This was to prove to be the final straw that ended Hlophe’s career.
• In April 2021 the Judicial Conduct Tribunal found Hlophe guilty of gross misconduct. The decision was confirmed by the Judicial Service Commission, which recommended that parliament impeach and ultimately remove him from the bench as per section 177 of the constitution.

The process was protracted because Hlophe used what is known as Stalingrad tactics – wearing down the plaintiff by challenging every aspect of the process and appealing every judgment made.

He used this approach again after the tribunal decision. He challenged both the decision and the process, taking matters to court repeatedly. The case was dismissed. The tribunal took 13 years to come to a conclusion – only then did he appeal the decision. Hlophe then lodged an application with the Supreme Court of Appeal but that failed.

In July 2022, the Judicial Service Commission recommended that parliament suspend Hlophe. The president did so five months later, suspending Hlophe from his duties with immediate effect, pending a decision of the National Assembly on his impeachment. Parliament then proceeded with the impeachment vote.

Why was he impeached and what are the consequences?

It’s a significant moment after 16 years of waiting.

As far back as 2008 Hlophe proved himself unfit for office. Judges must be beyond reproach and what Hlophe did was unconscionable for a judge president. The oath of office of judges in chapter 17 of the constitution requires them to

administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law of the republic.

Hlophe clearly broke his oath of office, going as far as trying to unduly influence fellow members of the judiciary to act unethically. What he did was dishonest. Such conduct can lead to public mistrust in the justice system, and weakens the capacity of judicial systems to guarantee the protection of human rights.

Research done by the Human Sciences Research Council on South African social attitudes shows decreasing trust in the courts from 1998 to 2022. Trust has dropped from a high of 58% in 2004 to 31% in 2022, the lowest it has been. This poses a further risk to South Africans’ hard-earned democratic gains, as trust in the other two spheres of government – legislative and executive – is even lower.

Never again?

The Judicial Service Commission recently adopted criteria for assessing and nominating candidates for appointments to the bench. However, it has been challenged for not applying those criteria in a recent round of interviews.

An applicant’s recommended appointment by the commission should send a message to South Africans that they are safe in the hands of the judiciary.

One can only hope that the criteria and guidelines keep unfit candidates off the bench and ensure that the appointment process is not hijacked for political purposes.

In addition, if the commission provides clear reasons for its decisions, that would help to strengthen its authority, and might prevent frivolous, unfounded and protracted legal challenges.

Hlophe broke trust with the judiciary and the public. His impeachment sets an example to other members of the judiciary who may feel tempted to abuse their power.

Narnia Bohler-Muller, is a divisional executive, developmental, capable and ethical state research division, Human Sciences Research Council. 

This article is republished from The Conversation under a Creative Commons license. Read the original article.