John Hlophe
Mandlakayise John Hlophe is a South African jurist and politician, currently serving as the Deputy President of uMkhonto weSizwe and the Leader of the Opposition of South Africa. He was the Judge President of the Western Cape Division of the High Court of South Africa from May 2000 until March 2024, when he was impeached. He was the first South African judge to be impeached under the post-apartheid Constitution.
Born in Stanger, KwaZulu-Natal, Hlophe began his career as a successful legal academic with a specialty in administrative law. He taught at the University of Natal from 1988 to 1990 and at the University of Transkei from 1990 to 1994. After joining the Cape High Court bench in January 1995, he rose quickly through the judicial ranks, becoming Deputy Judge President in May 1999 and Judge President in 2000. He was shortlisted for elevation to the Constitutional Court in 2009.
Known as a vocal proponent of demographic transformation in the South African judiciary, he was a divisive figure in Western Cape legal society. In 2005, he accused various colleagues of racism in a report that was leaked to the press and widely circulated. While his supporters heralded him as a future Chief Justice, he became increasingly embroiled in controversy, and he was the subject of numerous complaints to the Judicial Service Commission, including one from the Cape Bar Council, one from Deputy Judge President Patricia Goliath, and one from the judges of the Constitutional Court.
In the latter regard, in 2008, two judges of the Constitutional Court accused Hlophe of having attempted improperly to influence their judgment in matters involving President Jacob Zuma. After a prolonged legal battle, the Judicial Service Commission found him guilty of gross misconduct in August 2021, and the National Assembly of South Africa resolved to impeach him on 21 February 2024.
Early life and education
Hlophe was born on 19 May 1959 in Madundube, a rural area of Stanger in the former Natal Province. His clan name is Samela. His father, originally from Port Shepstone, worked as a security guard and later as a traditional healer, while his mother, originally from East Pondoland, worked as a sugarcane cutter and gardener. The younger of two brothers, he later said that his childhood home was a mud hut in the bush, located a six-kilometre walk from his school.He began school in 1967 at the Prospect Farm Primary School in Stanger, and spent weekends and holidays doing household tasks for his mother's employer, farmer Ian Smeaton. He became politically conscious as a result of the 1976 Soweto uprising and his education at the Ohlange High School in nearby Durban, where he matriculated in 1978. His interest in law was inspired by an attorney friend of Smeaton's, whose car Hlophe washed; he later said, "I admired him and thought I wanted to be like him and drive a car like his. Washing his car made me feel very special then."
Though both of Hlophe's parents died in 1980, Smeaton continued to sponsor his education. He attended the University of Fort Hare from 1979 to 1981, completing a BJuris, and went on to complete an LLB at the University of Natal in 1983. At the University of Natal, he studied administrative law with Lawrence Baxter, under whom he wrote his first academic article, a note on lobolo in Zulu customary law. After graduating, he was a fellow at the Legal Resources Centre in Durban, until, in 1984, he moved to Cambridge, England for further study. Supported by a Livingstone Trust scholarship, he completed an LLM at Cambridge University in 1984. He returned briefly to Natal in 1985, lecturing in law at the University of Zululand's KwaDlangezwa campus, but later that year he undertook doctoral studies at Cambridge on an Africa Educational Trust scholarship. He completed his PhD in 1988.
Academic career
Later in 1988, Hlophe joined the faculty of the University of Natal, becoming a lecturer in law at the university's Pietermaritzburg campus. He worked there for two years before, in 1990, he moved to Mthatha, Eastern Cape to join the University of Transkei. He was promoted to professor and head of public law in 1992. As an academic, he was a founding member of the university's legal aid clinic and the chief editor of the Transkei Law Journal. His students included Dumisa Ntsebeza. He also conducted side-work as a mediator and arbitrator, through the Independent Mediation Service of South Africa, and as a consultant on matters of labour law and industrial relations.While living in Mthatha, Hlophe was a member of the Industrial Court of Transkei, and in 1994 he became an ad hoc member of the Industrial Court of South Africa. In the interim, in 1993, he was admitted as an advocate of the Supreme Court of Transkei.
Cape High Court: 1995–2024
Shortly after the end of apartheid, newly elected President Nelson Mandela appointed Hlophe as a judge of the Cape Provincial Division of the Supreme Court of South Africa. He took office on 1 January 1995 and, aged 35, he was one of the youngest judges in the country. According to some reports, he was the first black judge to join the Cape bench, as well as the first judge to join the post-apartheid judiciary directly from academia. During his early tenure as an acting judge and judge, he was the protégé of Judge President Gerald Friedman.After serving as the division's acting Deputy Judge President in 1998, he was permanently appointed to that position on 18 May 1999. The following year, on 1 May 2000, he succeeded Edwin King as the division's Judge President. Lawyer Paul Hoffman later speculated that his rapid professional rise was partly due to his personal popularity, describing him as having been "charm personified at first, showing a willingness to learn the ropes and a preparedness not to take himself too seriously."
Notable cases
In the assessment of the Daily Maverick, Hlophe was generally a talented jurist and "it was his conduct as a judicial officer that sank what could have been a brilliant and transformative career". Similarly, while admiring his "intellectual pedigree", Hugh Corder remarked that, "not every good academic makes a good judge". Constitutional law judgments written by Hlophe were upheld by the Supreme Court of Appeal in De Lille v Speaker of the National Assembly and by the Constitutional Court in SATAWU v Garvas. His other notable judgments include Mabuza v Mbatha, on the recognition of customary marriage, which the Constitutional Court cited in Bhe v Magistrate, and Magewu v Zozo, on child maintenance, which the Constitutional Court cited in S v M. In the 2021 matter of S v Bongo, Hlophe dismissed corruption charges against former cabinet minister Bongani Bongo, who was accused of offering bribes to obstruct a state capture probe at Eskom; the Supreme Court of Appeal overruled his judgment and ordered a retrial in 2024.''Minister of Health v New Clicks''
In 2004, Hlophe presided in Minister of Health v New Clicks, which gave rise to personal as well as legal controversy. In August, Hlophe's court dismissed the application, which was an urgent challenge by pharmaceutical companies to medical pricing regulations newly promulgated by the Minister of Health. The majority judgment was written by Judge James Yekiso, joined by Hlophe, and opposed in a dissenting judgment by Deputy Judge President Jeanette Traverso. When the court was hearing the pharmaceutical companies' application for leave to appeal, Hlophe caused a stir by complaining that legal practitioners were circulating rumours that he had written the majority judgment in Yekiso's name. He apparently linked this misconception to racism, and in the weeks thereafter, he complained publicly about "a calculated attempt to undermine the intellect and talent of African judges". He later accused Deputy Judge President Traverso of having started the rumour in question.In the interim, Hlophe's court delayed handing down a decision on the applicants' leave to appeal its judgment. As a result, the applicants took the highly unusual step of approaching the Supreme Court of Appeal directly, effectively leapfrogging the High Court. The Supreme Court agreed to hear both the application for leave to appeal and argument on the merits. After those hearings had taken place, and while the Supreme Court's judgment was reserved, Hlophe handed down the High Court's own ruling in early December: he refused the applicants leave to appeal. This was an extremely surprising decision, because South African courts generally permitted appeals of split judgments as a matter of course. In the ruling, Hlophe castigated the applicants and their counsel, notably Jeremy Gauntlett, for having approached the Supreme Court before the High Court had made its decision. This led the leaders of the Cape Bar Council to issue a lengthy statement defending Gauntlett.
Notwithstanding Hlophe's decision to deny leave to appeal, the Supreme Court of Appeal handed down its own unanimous judgment three weeks later. The Supreme Court, quite contrary to the High Court, not only granted leave to appeal but also upheld the appeal, overturning the High Court's judgment. Judge of Appeal Louis Harms was highly critical of Hlophe's conduct, but, when asked about Harms's remarks, Hlophe told the Star, "To be frank, I couldn't care less."
''Thubelisha Homes v Various Occupants''
In March 2008, Hlophe handed down judgment in Thubelisha Homes v Various Occupants, in which he controversially awarded the state an eviction order to remove thousands of residents of Joe Slovo from the site of the N2 Gateway Project. The judgment was criticised by the Western Cape Anti-Eviction Campaign; by Pierre de Vos, who called it "completely devoid of compassion and also legally misguided"; and by other commentators who questioned its interpretation of the doctrine of legitimate expectations.When the Constitutional Court heard the matter on appeal, Justice Kate O'Regan said that Hlophe's order "really bothers me" insofar as it failed to provide for the relocation of the evicted residents. This concern ultimately led the court to overturn Hlophe's judgment in part: in Residents of Joe Slovo Community v Thubelisha Homes, the Constitutional Court sanctioned the eviction but imposed certain conditions on the state.