Judged, disgraced and now recycled — Hlophe’s return to the main parliamentary stage

24 Jun 2024

The decision by Zuma’s MK party to appoint John Hlophe as its chief whip in the National Assembly raises questions about the role MK will play in Parliament. As the first judge in SA’s democratic history to be impeached, Hlophe may be a deliberately controversial choice — or perhaps a Zuma appointment to repay old favours.

There can be no doubt of the signal that the uMkhonto Wesizwe (MK) leader, former president Jacob Zuma, is sending with the choice of John Hlophe as the party’s chief whip.

As the Sunday Times reported at the weekend, Hlophe told an audience how he sees the law: “I call it a legal ‘shitstem’ which was introduced and everything else changed; the result is that the laws in our courts, which we have mastered by the way … it was imposed upon us and forced down our throats.”

Of course, he was talking about the system of law that was first imposed by colonialism and then apartheid, but clearly he does not have any faith in the current system either.

He also said that land should not be controlled by individuals or corporations but by traditional leaders.

This is almost exactly the philosophy of MK’s manifesto, which talks about removing the Constitution altogether and creating a second house of Parliament which would see traditional leaders making the laws for South Africa.

It is worth mentioning that giving traditional leaders more control over more land is not necessarily a popular position. One party that contested the elections on precisely this point, the SA Royal Kingdoms Organisation, received just 9,893 votes.

And the EFF, which has always campaigned not just for the expropriation of land, but also for it to be nationalised, has never won more than 12% of the vote. This suggests there is still strong support for the issue of title — for individuals to be able to own and sell land, and to leave it to their children.

While Hlophe has sometimes been cast as fighting for the majority in South Africa, or as a symbol of the fight against racism, he has no record of ever being progressive.

It was he who ruled in the Satawu case that a union can be held financially responsible for damage caused during a protest that it organised.

The application was brought by the DA-controlled City of Cape Town and was upheld by the Constitutional Court. This gave councils a big weapon to use against unions in future demonstrations.

In addition, Hlophe has always appeared to support the people he claims to be fighting.

In 2020, it emerged that he had regularly appointed the same group of people as acting judges and that most of them were (according to government designations) white males. In at least one case, he appointed no black people.

The MK party is likely to nominate Hlophe to be its representative on the Judicial Service Commission (JSC), which would mean he plays a role in interviewing and selecting judges.

As the Sunday Times legal journalist Franny Rabkin has explained, there is no legal reason why he cannot belong to the JSC (and, of course, despite his impeachment as a judge, nothing is stopping him from being an MP).

Unfinished business

However, it would mean that the first person to be impeached as a judge in democratic South Africa was now playing a role in selecting judges. This would surely damage the legitimacy of the JSC and of the entire process of appointing judges.

Hlophe might well feel he has unfinished business with the JSC.

In 2009, after the Constitutional Court lodged its complaint against him, he faced a gruelling late-night JSC interview for a position on the apex court.

At the time, there was intense speculation that Zuma wanted to appoint him Chief Justice (he was nominated for the position by a group called “Justice for Hlophe” that refused to answer the simple question: How many members do you have?).

There was also speculation about why Hlophe had approached two judges hearing cases about Zuma in 2008 and asked them to rule in Zuma’s favour, and whether he had an agreement with Zuma that would see him being repaid with the position of Chief Justice.

In the end, the ANC majority on the JSC ignored Hlophe and Zuma nominated Judge Mogoeng Mogoeng as Chief Justice.

Hlophe’s appointment to Parliament and to this position may well reignite questions about whether he had a political motive when making some of his decisions.

In particular, there may be questions about one of Hlophe’s last rulings.

In 2021, he acquitted former state security Minister Bongani Bongo on a charge of trying to bribe Parliament’s evidence leader at the time, Ntuthuzelo Vanara. In his judgment, he claimed this was because no amount was specified for the bribe Bongo allegedly offered Vanara.

This ruling arrived amidst a debate in the ANC about when to impose the “step aside” rule and allowed Bongo and others to argue they were being treated unfairly by the party.

As the Supreme Court of Appeal found, this was simply wrong on the law.

While Hlophe has been the subject of intense reporting and speculation over the years, he has not spoken in public very often because, as a judge, it was not correct for him to participate in public debates.

As Daily Maverick’s Marianne Thamm has reported, another judge, Mushtaq Parker, has said under oath that he was assaulted by Hlophe.

Hlophe was also quoted as saying, back in 2005, that he had given a particular case to a particular judge because he “would fuck it up”.

Also during that period, he was accused of telling someone that he was a “piece of white shit”.

Setting the tone

Now, people will have an opportunity to see him speaking in public more often and playing a role on the very public stage that is Parliament.

For some, this may well be in keeping with the MK party’s public attitude.

Its public statements regularly insult the ANC in general and President Cyril Ramaphosa in particular. Its radio interviews often start with an MK spokesperson referring to the ANC as “thieves”.

Hlophe will be key to the strategy of the MK caucus.

He could display dignity in the National Assembly, or he could continue with the party’s current public posture — and the other 57 MPs will follow his lead.

At a time when parties representing 70% of the vote are in the coalition government, a party that appears to be an effective and dignified opposition could well benefit at the next general election in 2029.

It is still not clear why MK decided to boycott the first sitting of the National Assembly while attending the National Council of Provinces and the provincial legislatures.

There has been speculation that MK, Zuma, or the structures that make these decisions, were simply not ready to confirm who their MPs would be.

At the same time, it is worth pointing out how different the roles of judge and MP are.

A judge’s orders are followed to the letter — by applicants, respondents, clerks, lawyers and the public.

An MP has to debate and persuade and, as chief whip, Hlophe will have to persuade MK MPs to follow his instructions, often in the hurly-burly of Parliament.

The last person to have made a shift like this, former Public Protector Busisiwe Mkhwebane, has yet to make a major impact as an EFF MP (her husband, David Skosana, is an MK MP, and thus one of the people who will be led by Hlophe).

What is clear is that Hlophe has been at the centre of many intense storms over the years. Several of them have led to fervid, sometimes difficult, debates about law and race.

He is likely to be at the centre of several more storms to come. DM

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Unfinished business

Setting the tone