John Hlophe

Yahya John Mandlakayise Hlophe (born 1 January 1959 in Stanger, KwaZulu-Natal) is the former Judge President of the Western Cape Division of the High Court of South Africa.

He is the first Judge President to have ever been removed from office through impeachment proceedings in post-1994 democratic South Africa.

Born in Stanger, Natal, he was educated at the University of Natal; the University of Fort Hare and Cambridge University.

Hlophe taught law at the University of Transkei, South Africa, before being appointed in 1995, aged 36, to sit as the first black judge in the High Court in Cape Town.

He was the first full-time academic to be appointed as a High Court Judge.

He was appointed to head the court in 2000.

Hlophe became the subject of allegations of misconduct on a number of matters during 2005–2006, which were referred for investigation by the Judicial Service Commission.

The JSC considered the following four complaints: Firstly, that Hlophe had accepted payments from the Oasis Group without statutorily required Ministerial consent; secondly that he had improperly granted permission, while in receipt of such payments, for Oasis to sue Judge Desai for defamation; thirdly that he had subjected a legal practitioner to a racist insult; and finally that he had made disparaging remarks to counsel about a fellow judge to whom the Judge President had allocated a contentious case.

In October 2007, in a divided vote, the Commission decided by an undisclosed majority that there was insufficient evidence to proceed with a public enquiry into the allegations.

The decision was the subject of controversy and was criticised by, amongst others, former Constitutional and Appeal Court Judge Johann Kriegler, whose criticism was published in the Sunday Times, a widely read, nationally circulated newspaper.

On 9 October 2007, nine senior members of the Cape Bar Council wrote to the Cape Town- based Cape Times newspaper in support of former constitutional and appeals court judge Johann Kriegler's comment at the weekend that Hlophe was "unfit for the Bench".

Responding to the controversy the Judicial Services Commission on 18 October 2007 issued an explanation of their decision which stated that they had considered the four complaints.

It pointed out that it had no general disciplinary jurisdiction, being limited by section 177 of the South African Constitution to the ability to find a judge guilty of "gross misconduct".

In this case, they said, the only charge that might merit that finding was that Hlophe had received payments from Oasis when not permitted to do so.

With respect to that complaint the JSC stated that Hlophe had alleged that he had received oral permission from the (by then late) Minister of Justice, that the Ministry of Justice had stated that "... it could not say that oral permission had not been given" and that there was accordingly "... no evidence of the absence of consent".

The majority of the JSC accordingly found that "... the facts did not make out a prima facie case".

The JSC stated further that "[a]lthough not amounting, in the view of the majority of the Commission, to impeachable conduct, the grant of leave to Oasis to sue Judge Desai (leave of the Court to sue a Judge being a legal requirement) was considered by all Commissioners to be a matter warranting adverse comment".

With regard to the alleged racist incident the JSC stated that the complainant had asked that the matter not be pursued.

Finally, with regard to the alleged disparagement of a fellow judge the JSC recorded that the senior counsel allegedly able to support the allegation had submitted an affidavit which did not in fact do so.

It recorded that Hlophe had admitted discussing the matter with another senior counsel, and had conceded that that was improper, apologising for doing so.

Members of the faculty of law at the University of Cape Town also questioned whether Cape Judge President John Hlophe was fit to occupy his position.

Conversely, the Black Lawyers Association criticised Judge Kriegler for his "... unsolicited attack ..."

on Judge Hlophe and by implication the Judicial Services Committee, which had, it stated, cleared him.

"In allowing himself to comment at all upon a matter with which the JSC was seized, and of which it has now lawfully disposed, Judge Kriegler placed himself in contempt of the lawfully constituted authority, and evinced disrespect for the members of that august body, not excluding the Chief Justice," said the BLA's judicial committee chairperson, Dumisa Ntsebeza SC.

On 30 May 2008 the judges of the Constitutional Court issued a statement reporting that they had referred Judge Hlophe to the Judicial Service Commission (JSC) as a result of what they described in their statement as an approach to certain of them "... in an improper attempt to influence this Court's pending judgement in one or more cases".

The statement stated further that the complaint related to four matters in which either Thint (Pty) Ltd or the Deputy President, Jacob Zuma, were involved.

It was subsequently reported that Hlophe was alleged by unnamed sources to have approached Judges Nkabine and Jaftha separately in their offices and to have told them that he would be next Chief Justice and that they should consider their future – and rule in favour of Zuma.

Judge Hlophe was reported to have rejected the allegations as "... utter rubbish ..."

and as "... another ploy ..."

to damage his reputation.

The Cape Bar Council on 2 June 2008 indicated that it had requested the JSC to "... facilitate Judge Hlophe's absence from office pending the final determination of the complaint ...", stating that it was "... untenable for Judge Hlophe to continue in office pending the determination of the complaint ...".

The Law Society of South Africa, the umbrella body for attorneys throughout the country, was reported to have expressed its "... grave concern ..."

and to have stated that it had "... no doubt that the Constitutional Court judges considered the matter carefully before lodging the complaint".

Attorney Peter Horn, the President of the Law Society of the Cape of Good Hope, representative body of attorneys in the Western and Eastern Cape, urged Judge Hlophe to take a leave of absence and that there needed to be a "... sense of great urgency ...", and that the JSC should make a special effort to get its members together before the end of the week.

Noting that the Society did not prejudge the issue, he stated further on the Society's behalf that "... if the allegations are found to be correct, then clearly the judge president cannot continue to serve on the bench".

The JSC met on Friday 6 June 2008, but adjourned as a result of the Constitutional Court's not having answered interrogatories by the meeting.

Hlophe was reported on 6 June 2008 to have taken leave of absence, and to have been replaced temporarily by his deputy, Jeanette Traverso.

On 10 June 2008 Judge Hlophe lodged a complaint with the JSC against the judges of the Constitutional Court for violating his rights by publicising the complaint against him and by "prejudging" the issue.

He was also defended in an open letter from Paul Ngobeni to the judges of the Constitutional Court.

On 19 April 2010 the high court in Cape Town found the proceedings of the Judicial Service Commission (JSC), where it dismissed a complaint of gross misconduct against Western Cape Judge President John Hlophe, were "unconstitutional and invalid".