Ramaphosa suspends WC Judge President John Hlophe pending Parliament's vote on his removal

14 Dec 2022

Judge President John Hlophe was suspended from his position as judge president of the Western Cape high court and as a sitting judge by President Cyril Ramaphosa on Wednesday pending National Assembly proceedings to have him removed as a judge.

President Cyril Ramaphosa has suspended the Judge President of the Western Cape, Judge John Hlophe, pending a decision to remove him as a sitting judge for serious misconduct.

According to a statement released by the presidency on Wednesday afternoon, Ramaphosa has suspended Hlophe on the advice of the Judicial Services Commission and in terms of section 177(3) of the Constitution.

A tribunal of the JSC had found Hlophe guilty of attempting in 2008 to influence two Constitutional Court justices, Chris Jafta and Bess Nkabinde, in a matter involving former president Jacob Zuma.

After their report was handed over the Tribunal indicated that they would not recommend Hlophe’s suspension until he had finished a legal challenge against their report.

Hlophe had then unsuccessfully challenged the findings of the JSC against him but a full bench of the Gauteng high court had concluded that to rule in his favour would lead to an absurd conclusion that “a judge who has been found guilty by the [Judicial Conduct] Tribunal of committing serious breaches of the Constitution, including interfering with the functioning of the courts in flagrant contradiction of section 165 [of the Constitution], is untouchable”.

This then cleared the way for his suspension.

Ramaphosa received the original JSC report on 27 July 2022.

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Section 177 makes provision for a judge to be removed from the bench for one of three grounds: Incapacity, gross incompetence, or gross misconduct. According to the statement the suspension was triggered by gross misconduct and it quotes the part of the Constitution that deals with the removal of a judge who is found guilty of gross misconduct.

The next step will be for the National Assembly to make a resolution and remove him as a sitting judge.

The Presidency’s statement has cautioned that in order to ensure continuity and stability in the work of the divisional high court, the suspension which is in effect immediately, is on condition that Hlophe completes all part-heard matters and reserved judgments.

“President Ramaphosa received the JSC report on the 27th of July 2022.

“Due to the long history and complexity of the matter, President Ramaphosa took time to carefully consider all the permutations of the Judicial Services Commission's recommendations, including obtaining guidance from an independent legal opinion.

“The President fully appreciated the need to balance Judge President Hlophe’s rights with those of the public and the interest of the judiciary as a whole.

“The Judicial Conduct Tribunal concluded in July that Judge President Hlophe’s conduct breached the provisions of section 165 of the Constitution by improperly attempting to influence the two Justices of the Constitutional Court to violate their oaths of office.

“The JCT established that Judge Hlophe’s behavior seriously threatened and interfered with the independence, impartiality, dignity, and effectiveness of the Constitutional Court and further undermined public confidence in the judicial system. The JSC has referred the matter to parliament for the National Assembly to institute impeachment proceedings against Judge President Hlophe,” the presidency’s statement reads.

Patricia Goliath will be the acting Judge President.

In May 2008, 11 Justices of the Constitutional Court lodged a complaint with the JSC against Judge President Hlophe for his improper attempt to influence the outcome of certain cases pending before the Constitutional Court in favour of former President Jacob Zuma.

At the time of his appointment to the bench in 1995 Hlophe, now 62, was hailed as the youngest judge to be appointed to the Western Cape high court. Highly qualified he holds an LLM and PhD from Cambridge.

Before that he was a professor and Head of the Department of Constitutional and Public International Law at the University of Transkei (Now called Walter Sisulu University).

He was also a member of the South African Law Commission’s Project on International and Domestic Arbitration; he is a former Chancellor of the Peninsula Technikon and represented South Africa at the Hague Conference on Private International Law (the multi-lateral treaty on Recognition, Jurisdiction, and Enforcement of Foreign Judgments in Civil and Commercial Matters. DM/MC

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