John Hlophe

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name = John Hlophe

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

Background and career

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. [ [http://www.adminnews.uct.ac.za/docs/5d4cfe126d5fe27985437f065c725919.doc Top legal minds join Law Faculty’s teaching programme] (MSWord doc)] He was appointed to head the court in 2000.

Controversies

* In a 2004 case between Health Minister Manto Tshabalala-Msimang and elements of the pharmaceutical industry, Hlophe was accused of “unreasonably” delaying his judgement on leave to appeal. In an unprecedented step the unsuccessful party in the matter had been forced by Hlophe's failure to either grant or refuse leave to appeal and had applied directly to the Supreme Court of Appeal for leave to appeal. Having been informed that the application would be made directly to the Supreme Court of Appeal, he refused leave to appeal days before the Supreme Court of Appeal considered the matter. His ruling was summarily overturned by the Supreme Court of Appeal in a judgment that was harshly critical of him. Hlophe was reported to have said with regard to the ruling that he "...couldn’t care less.” A complaint about his conduct was laid with the Judicial Service Commission.
* In 2004 Hlophe wrote a report to Chief Justice Pius Langa alleging racism at the Cape Bar. He also accused his deputy, Deputy Judge President Jeanette Traverso, of racism. In the aftermath of controversy as to the authorship of a majority judgment in the name of Judge NJ Yekiso in the same matter that had attracted the Supreme Court of Appeal's censure [ [http://www.saflii.org/za/cases/ZACC/2005/14.html Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others] ] , Hlophe accused certain white judges and leading members of the Cape Bar of racism in a 43 page report submitted to the Minister of Justice in November 2004. [ [http://www.legalbrief.co.za/article.php?story=20050228182957353 Judges, advocate named in racism report] ]
* In 2005 Hlophe was reported to have said that he allocated an Afrikaans language rights case to senior Cape High Court Judge Wilfred Thring “because I knew he would fuck up the trial and then it could be set right on appeal”. He was reported to have repeated this in front of numerous witnesses, including senior advocate Norman Arendse SC, who wrote to Chief Justice Pius Langa about the incident. Denying he had made the remark, Hlophe claimed there was a smear campaign against him. [ [http://www.iol.co.za/index.php?art_id=vn20051027070400399C472172 Judge puts Cape race row papers away for good] IOL ]
* Also in 2005, Hlophe was reported to have called a Cape Town attorney, Joshua Greeff, a “piece of white shit who is not fit to walk in the corridors of the High Court”. He also suggested that Greeff should go back to Holland. Greeff is not Dutch. Hlophe denied making the remarks. [ [http://www.news24.com/News24/South_Africa/News/0,6119,2-7-1442_1816173,00.html New twist in Hlophe saga] News24]
* In June 2006, the JSC was asked to investigate complaints that Hlophe’s son received a bursary from a large Cape Town firm of attorneys, Smith Tabata Buchanan Boyes (STBB). [ [http://www.cbn.co.za/dailynews/1384.html?PHPSESSID=6ffee70f7bcf936f34bf769d31f0292a More on Judge Hlophe's son] Cape Business News] [ [http://www.hwb.co.za/releases_2006/060522_hlophe.html Law firm defends Hlophe bursary] HWB Communications ] Derek Wille, former STBB partner and a university friend of Hlophe, said the payments had come from a bursary scheme “to help disadvantaged students”. Hlophe had appointed Wille to the bench as an acting judge on a number of occasions. Reported to the JSC for a possible conflict of interests, he claimed he did not know who was paying for his son’s education. The JSC accepted his word.
* In early 2006 it was reported that Hlophe had, without the necessary Ministerial consent, taken a remunerated position on the board of Oasis, an asset management company.
* It was subsequently reported that Hlophe had, whilst on the Oasis payroll, considered a matter involving one of his colleagues, JudgeSiraj Desai and given Oasis permission to sue him.
* In July 2006 Justice Minister Brigitte Mabandla permitted Hlophe four months’ leave of absence. [ [http://www.businessday.co.za/specialreports/judiciaryracism.aspx?Page=BD4P5635&MenuItem=BD4P5635 Racism in the Judiciary - Special report] Business Day]
* In November 2007 Hlophe was reported to have written to the Department of Justice demanding that his official motor vehicle, a three year old Mercedes Benz, be upgraded to a Porsche Cayenne. He argued that his position as Judge President warranted this upgrade. When contacted by members of the press, Hlophe is reported to have asked "What has this got to do with you? My purchase of a vehicle has got absolutely nothing to do with you," It is reported that when reminded that the car would be purchased using taxpayers' money, he stated that it would "never, ever be approved". It none-the-less was.

Consideration by the Judicial Service Commission

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. [ [http://www.sundaytimes.co.za/PrintEdition/News/Article.aspx?id=437683 The little lawyer in the ring with the head judge] Sunday Times ] [ [http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20070415083610608C468495 Hearings on Hlophe's conduct delayed] IOL] 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 [ [http://www.iol.co.za/index.php?art_id=vn20071009035449895C346531 Hlophe has no place on Bench, say legal gurus] IOL] .

On October 9 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".They were Schalk Burger (Senior Counsel, former acting judge, a top commercial lawyer and former chairman of Johannesburg Bar Council); Michael Fitzgerald (Senior Counsel and former acting judge); Jeremy Gauntlett (Senior Counsel, former chairman of General Council of the Bar and Cape Bar Council, and at various points advocate for government and senior ANC members); Peter Hodes (Senior Counsel and former leading figure in the Cape Bar Council); Rob Petersen (Senior Counsel, human rights lawyer and apartheid exile); Les Rose-Innes (Senior Counsel and former chairman of the Cape Bar Council); Nic Treurnicht (Senior Counsel, former chairman of the Cape Bar Council); Henri Viljoen (Senior Counsel, former acting judge and anti-apartheid lawyer in the famous "Wit Doeke" case) and Renata Williams (Senior Counsel and former acting judge).

Responding to the controversy the Judicial Services Commission on 18 October 2007 issued an explanation of their decision [Legalbrief articles October 23 2007: [http://www.legalbrief.co.za/article.php?story=20071023145931920] ] 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. [ [http://www.iol.co.za/index.php?art_id=vn20071011041927240C560558 UCT law professors in attack on Hlophe] IOL ] [ [http://www.iol.co.za/index.php?art_id=vn20071113113419698C909785 'Hlophe is a burden on the Bench'] IOL ]

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 [ [http://www.iol.co.za/index.php?art_id=vn20071010112504269C915898 Hlophe may have R2m reasons to ride out storm] IOL ] .

Allegation of interference with Constitutional Court Judges

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 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" ["iol" May 30 2008, 19h58: [http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=nw20080530181316592C412134] ] . 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. [Press release: .] It was subsequently reported that Hlophe was alleged 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. [ [http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20080608145326896C183154 News - South Africa: 'Hlophe approached two judges' ] ]

Judge Hlophe was reported to have rejected the allegations as "...utter rubbish..." and as "...another ploy..." to damage his reputation ["iol" June 2 2008, 06h59: ] .

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...". [Press release: )] .

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". Cape Times, June 3 2008]

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's 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.

The Constitutional Court delivered its full exposition of its complaint to the JSC on 17 June 2008 [http://www.businessday.co.za/PDFs/statement.pdf] . 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.

The Court also explained that Judge Hlophe misunderstood their role. As complainants they could not prejudge the matter as the JSC would adjudge it, not them.

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

References

External links

* [http://www.legalbrief.co.za/index.php?page=HlopheSaga The Hlophe Saga: Step by Step] Legalbrief Today
* [http://www.iol.co.za/index.php?art_id=vn20071117091124502C631560 From Merc to Porsche, Hlophe wants a new car] IOL