From Zuma’s arms deal case to impeachment: 5 things you need to know about judge Hlophe’s legal battle

22 February 2024 - 09:29
Retired judge Chris Jafta, Western Cape judge president Mandlakayise Hlophe and retired judge Bess Nkabinde at the heart of the 15-year-long legal battle by Hlophe.
Image: Felix Dlangamandla (Gallo)/ Trevor Samson/NWUPotch (X) Retired judge Chris Jafta, Western Cape judge president Mandlakayise Hlophe and retired judge Bess Nkabinde at the heart of the 15-year-long legal battle by Hlophe.

Western Cape judge president Mandlakayise John Hlophe has become the first judge in South Africa to be impeached by parliament.

Parliament on Wednesday voted for Hlophe's removal from office by 305 votes to 27. 

This brings to an end a protracted legal battle which started in 2008. Here's what you need to know about the case: 

Constitutional Court judges complain of misconduct against Hlophe:

  • The legal battle started in March 2008 when the Constitutional Court was dealing with the prosecution of former president Jacob Zuma and arms company Thint (Thales) on corruption charges. This was a year before Zuma took over the presidency from Thabo Mbeki. 

  • Hlophe was accused of attempting to influence ConCourt judges Chris Jafta and Bess Nkabinde to rule in favour of Zuma in the corruption case. 

  • Hlophe, however, lodged a complaint of misconduct against the panel of apex court judges, alleging his constitutional rights were violated when the judges published a media statement about their complaints.

What did Hlophe say to justice Jafta and Nkabinde? 

According to JSC findings, Jafta, who was an acting judge in the Constitutional Court at the time, was approached by Hlophe privately after Zuma’s case was heard. Hlophe suggested to Jafta that the Supreme Court of Appeal made an error in some aspects of judgment in Zuma’s case and the Constitutional Court needed to correct this. 

Hlophe said to Jafta in isiZulu: “Sesithembele kinina” (You are our last hope). 

The court papers stipulate Jafta was uncomfortable about the discussion because Hlophe was an “outsider judge” talking about a pending judgment. 

 “He was alive to the effect that such a conversation, from a source outside the panel, might have in exerting an influence on his thinking about how to decide the matter. His negative reaction to the discussion was such that when Nkabinde mentioned casually that Hlophe had phoned her to set up a meeting with her to discuss ‘privilege,’ he alerted her and cautioned her that Hlophe might bring up the Zuma cases,” the court papers read. 

Hlophe when talking to Nkabinde, who was also a junior on the panel, brought up the Zuma cases. 

“Hlophe said that Zuma had been the victim of persecution just as he, Hlophe, had been persecuted. Nkabinde (forewarned by Jafta) rebuked Hlophe for mentioning the case of Zuma and stopped the discussion. The meeting then ended. Nkabinde understood the drift of the conversation to be calculated to influence her approach to the case to favour Zuma’s cause,” the court papers read. 

Judicial Service Commission (JSC) findings on the case: 

In the initial stages of the case in 2009, the JSC found there was no substantial evidence in both complaints to justify a finding that either Hlophe or the Constitutional Court justices in question were guilty of misconduct. After the case was taken on review by Freedom Under Law, the JSC probed the matter. The JSC, on August 25 2021 by a majority found Hlophe had committed gross misconduct in conversations he had with Jafta and Nkabinde before court judgments on Zuma were delivered. 

Was Hlophe’s freedom of expression violated? 

The Johannesburg high court judgment on the matter in 2022 reads: “The contention that freedom of expression rights arise at all is misconceived. Though everyone is at liberty to think what they like, judges are bound to conduct themselves at all times in a manner that protects and promotes the integrity of the legal process. In that context, it is not open to a judge in a private conversation to blurt out his preferences, biases or opinions to a fellow judge who, to his knowledge, is preparing a judgment on those very issues about which he has a firm view.” 

Who were the judges that laid the complaint? 

When conversations that Hlophe had with Jafta and Nkabinde regarding Zuma cases were discussed with the rest of the judges, the panel of judges decided to lay a complaint of misconduct against Hlophe. 

The judges listed in the court papers were: 

  • Former acting chief justice Dikgang Moseneke

  • Justice Jennifer Mokgoro 

  • Justice Catherine Mary Elizabeth O’Regan 

  • Justice Albert Louis Sachs 

  • Justice Johann van der Westhuizen

  • Justice Mohammed Yacoob