John Hlophe

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".

The Judicial Services Commission's disciplinary committee released a statement at the end of August 2009, saying that it was not going to continue with the investigation into the Constitutional Court's complaint against him. The court says it "has no comment to make" on the decision. However, this decision was taken by a six-four majority of its ten members. The decision has been strongly criticised by legal academics, who say this issue could only have been resolved through cross-examination.

The Premier of the Western Cape, Helen Zille, then instituted and urgent motion with the Western Cape High Court that the JSC disciplinary committee's decision should be set aside. Two reasons were supplied in support of this claim. The first was that the JSC's disciplinary committee had not been properly constituted at the time of reaching their decision, by virtue of the fact that three of its constitutionally required thirteen members, including the Premier herself, had not been present. The second was that the decision had not been supported by a majority of the JSC disciplinary committee's full membership, having only six votes for the decision out of a possible thirteen. Judges RJW Jones and S Ebrahim found in favour of the Premier, and ordered that "the proceedings before of the Judicial Services Commission on 20 to 22 July 2009 and 15 August 2009, and the decision to dismiss the complaint and countercomplaint which were the subject of those proceedings" were "unconstitutional and invalid and are set aside".

In a separate case regarding the same decision of JSC, Judge of Appeal PE Streicher of the SCA, with Judges Brand, Cachalia, Theron and Seriti concurring, also upheld an appeal brought by the not-for-profit advocacy group Freedom Under Law, finding that "the decision of the Judicial Service Commission at its meeting on 15 August 2009, that 'the evidence in respect of the complaint does not justify a finding that Hlophe JP is guilty of gross misconduct' and that the matter accordingly be 'treated as finalised', is reviewed and set aside" and setting aside a previous North Gauteng High Court finding to the contrary. The judge also found that the JSC had a "constitutional duty to properly investigate allegations of gross misconduct on part of [a] judge" and that "cross-examination [is] required to resolve disputes of fact".

Hlophe returned to work in 2009, saying he had returned because he had been "out too long" and was tired of living off taxpayers' money. The settlement talks had "stalled" and the stalemate was preventing him from "reaching his best potential in the profession".

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.

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 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, Jeannette 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.

The Constitutional Court delivered its full exposition of its complaint to the JSC on 17 June 2008. In it they reported that he had approached Judges Jafta and Nkabinde. He had told Nkabinde that he had a "mandate" to approach her and that the four cases referred to above were important for the future of Jacob Zuma. He told her that there was "no real case against Mr Zuma and that it was now important to hold in his favour". Upon being asked what business it was of his to discuss the matter with her, Hlophe is reported to have replied that "... Mr Zuma was being "persecuted" as he [Hlophe] had been persecuted". Judge Jafta confirmed that a similar approach had been made to him, while refusing to divulge certain parts of the conversation, which he said were confidential and which he would keep so as a result of his long acquaintance, and friendship, with Hlophe. He stated that Hlophe had told him that he was "... our last hope ...". Both judges stated that they had dealt with the matter firmly and rejected Judge Hlophe's advances.

Hlophe was reported to have submitted a 71-page response on Monday 30 June 2008.

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.

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.

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.

Born in Stanger, KwaZulu-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.

Yahya John Mandlakayise Hlophe (born 1 January 1959 in Stanger, KwaZulu-Natal) is Judge President of the Western Cape Division of the High Court of South Africa. Hlophe is controversial for the number and range of allegations of improper conduct as Judge President that critics allege have damaged the credibility of the court.