John Hlophe turns to the courts —again — as impeachment vote looms

Suspended Western Cape judge president John Hlophe has turned to the Western Cape High Court seeking to interdict parliament’s impeachment vote scheduled for next Wednesday.  

Hlophe wants his urgent application to be heard in court on Tuesday — the day before the vote. His attorney, Barnabas Xulu, said they had asked for a judge from outside the Western Cape division.

He said the court papers were being served on the speaker of parliament, the justice portfolio committee, all political parties in parliament, the president, the justice minister and the Judicial Service Commission (JSC).  

Hlophe faces impeachment for a 2008 complaint from all the then justices of the Constitutional Court that he tried to influence the outcome of pending cases before their court connected to corruption charges against former president Jacob Zuma. In 2021 the JSC found him guilty of gross misconduct, saying he had attempted to improperly influence two of the apex court’s members to decide pending matters “in favour of particular litigants”.   

The embattled judge president has asked the court to interdict the vote pending the outcome of his application to the Constitutional Court — filed late in January — in which he has asked it to set aside the justice portfolio committee’s decision to recommend impeachment and to direct parliament to adopt impeachment rules for judges. 

Hlophe argued in both applications that his cases were not just about him. They had “ramifications not just for me but for the protection of judicial independence”, he said in his latest court papers. 

In his application to the high court, Hlophe said the speaker had previously adopted a “reasonable position” when he had litigated, which was to await the outcome of the litigation. The approach of the speaker was now “different to that which I was accustomed”, he said. 

Now, the speaker insisted the vote would go ahead unless parliament was interdicted. Yet his application to the Constitutional Court made “meritorious constitutional complaints”. It would erode judicial independence, constitutionalism and the rule of law if these were to be ignored, he said.  

There was no urgency in holding an impeachment vote — “and a delay until the outcome of the Concourt and other litigation is not onerous given the history of this matter”, said Hlophe.

The “other litigation” he referred to is an application for leave to appeal against a judgment of the high court in Johannesburg, which rejected his challenge against the JSC’s finding of gross misconduct.

Separate case

Though Hlophe was granted leave to appeal to the Supreme Court of Appeal (SCA), that appeal lapsed when he did not file a record of appeal in the SCA, saying he could not afford to do so. There is a separate case in the North Gauteng High Court over Hlophe’s litigation costs after the state stopped funding his legal fees. 

“Halting the holding of an unconstitutional impeachment vote far outweighs the prejudice of delays that my application to the Concourt and other pending applications in the North Gauteng High Court presents,” said Hlophe. 

He has been suspended for more than a year so he did not “pose a threat to judicial independence or the integrity of judicial office”. But there was no ready remedy to reverse an unconstitutional impeachment, he said. The damage was irreparable because the vote could not be undone by a court.  

He was “equally anxious” that his removal proceedings be finalised without delay. But it “is for our constitutional posterity that my removal from office is done lawfully”, he said.  

If the vote were to happen “under the cloud of the constitutional uncertainty presented in my application to the Concourt, it would create an unprecedented constitutional crisis if I were to succeed after the removal vote has been taken”.  

If the speaker were to undertake that the vote would not go ahead before the Constitutional Court’s decision, he would stay or even abandon his application, he said. 

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