It took 16 years, but SA impeaches senior judge

Former Western Cape chief judge John Mandrakais Hlophe is one of the first two members of the judiciary to be impeached since South Africa became a constitutional democracy in 1994. A parliamentary vote in late February 2024 stripped him of his title and barred him from the courts. Access his retirement package. A judge can earn R2 million (over US$100,000) a year after his retirement. Constitutional law expert Narnia Bohler-Muller answers some questions about impeachment.

What were the best and worst moments of his career?

Hlofe was the first black judge appointed to the court in 1995, and the first judge with an academic background. Just five years later, in 2000, he became Chief Judge of the Western Cape High Court.

Hlofe has been controversial on and off the bench, despite his impressive play.

Low points include:

• At the same time as his appointment as Chief Judge, he was also appointed as a non-executive director of Oasis' Crescent Retirement Fund and received approximately R500,000 (US$26,000) in consultancy fees, which he initially did not declare to the South African Revenue Service or the judiciary. I hadn't. Minister.
• In 2004, the Supreme Court of Appeal overturned a judgment in favor of the then health minister, finding that Hlofe had unduly delayed ruling on the pharmaceutical company's appeal application, denying it the right to a fair hearing.
• In February 2005, Hlophe handed the then Minister of Justice a report into allegations of racial discrimination in the Cape Department. The document lists various allegations against his colleagues. He also accused the late Chief Justice Pius Langa of following political agendas and accused former Chief Justice Mogoeng Mogoeng of being an Islamophobe and a liar.
• In 2007, Hlophe asked the government to buy him a Porsche commensurate with his status. South African judges drive Mercedes-Benz cars. A Porsche would have been more expensive and luxurious.
• In 2008, judges at the Constitutional Court accused Mr Hlophe of judicial misconduct, accusing him of trying to influence the outcome of a matter concerning then-vice president Jacob Zuma's corruption charges. This was the final straw that ended Hlofe's career.
• In April 2021, the Judicial Conduct Tribunal found Mr Hlophe guilty of gross misconduct. This decision was confirmed by the Judiciary Committee, which recommended that Parliament impeach him pursuant to Article 177 of the Constitution and ultimately remove him from the jury.

The proceedings were prolonged because Hrofe used the so-called Stalingrad tactic. This meant exhausting the plaintiffs by challenging every aspect of the process and appealing every judgment handed down.

He used this approach again after the court ruling. He challenged both the decision and the process, repeatedly taking the matter to court. The lawsuit was dismissed. The court took him 13 years to reach its conclusion, and only then did he appeal the decision. Mr. Hlophe then applied unsuccessfully to the Supreme Court of Appeal.

In July 2022, the Judiciary Committee recommended to Parliament that Mr. Hlofe be suspended. The president did this five months later, immediately suspending Mr. Hlophe from office pending an impeachment decision by Congress. Congress then proceeded to vote on the impeachment resolution.

Why was he impeached and what were the consequences?

It's an important moment after a 16-year wait.

Hlophe went back to 2008 to prove that he was unfit for public office. A judge must be above reproach, and Mr. Hlofe's actions were beyond his conscience as the presiding judge. The oath of office in Chapter 17 of the Constitution requires judges to:

To administer justice to all men equally, without fear, favor, or prejudice, in accordance with the Constitution and laws of the Republic.

Mr. Hlophe clearly violated his oath of office and even attempted to unduly influence his fellow law enforcement officers into engaging in unethical behavior. What he did was dishonest. Such actions can lead to public mistrust in the judicial system and weaken its ability to ensure the protection of human rights.

A Human Sciences Research Council survey of social attitudes in South Africa shows that trust in courts has declined between 1998 and 2022. Trust fell from a high of 58% in 2004 to an all-time low of 31% in 2022. This poses further risks to South Africans' hard-won gains in democracy, as trust in the other two areas of government (legislative and executive) is even lower.

Will it never happen again?

The Judiciary Committee recently adopted criteria for evaluating and nominating candidates for appointment to the court. However, the failure to apply those standards in recent interviews has been called into question.

The applicants' appointments recommended by the committee should send a message to South Africans that they are safe in the hands of the judiciary.

We can only hope that the standards and guidelines keep unqualified candidates off the bench and that the appointment process is not hijacked for political purposes.

Moreover, if the commission provides clear reasons for its decisions, it will help strengthen its authority and potentially prevent frivolous, unfounded and protracted legal challenges.

Mr Hlophe has destroyed the trust of the judiciary and the public. His impeachment will set an example for other members of the judiciary who may be tempted to abuse their power.

Narnia Bohler-Müller is Division Executive in the Development, Competent and Ethical State Research Division of the Human Sciences Research Council.

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