John Hlophe, the Judge President of the Western Cape division of the high court, has been a controversial figure for years and he’s still at it. 

The Judicial Service Commission (JSC) is not just responsible for interviewing potential judges; it’s also tasked with disciplining existing judges. Last year the body found Hlophe guilty of gross misconduct for trying to sway Constitutional Court Justices Bess Nkabinde and Chris Jafta in 2008 to make judgments in favour of then presidential-hopeful, Jacob Zuma, over the arms deal trial. It recommended that parliament begin a process of impeaching Hlophe – a first for a sitting judge in democratic SA. 😶

Justice Mandisa Maya, currently Judge President of the Supreme Court of Appeal and the forerunner for the position of Chief Justice, should have been part of that disciplinary proceedings, per the Constitution. But she recused herself because of what she described as a “close relationship” with Hlophe. This came up in her recent interviews for the top justice job. 

Well, Hlophe is using this to delay justice. He is in court appealing the JSC’s finding against him, saying Maya’s recusal means the process was unfair and unconstitutional. The Constitution makes it clear that should the SCA Judge President be unavailable their deputy should stand in. But neither Maya nor her deputy were available so they sent another SCA judge. 🤷🏽‍♀️

Advocate Tembeka Ngcukaitobi, representing the JSC in court, argued that while the Constitution does not say who should stand in if a deputy isn’t available, the court should interpret the law in a practical way or risk judges evading accountability on a technicality. 

Court adjourned last week and we’re not sure when we’ll hear the judgment. But if it’s not in Hlophe’s favour, he’ll likely appeal, delaying impeachment. The scary part is he continues in his powerful role as the Western Cape’s Judge President.

As Business Day puts it: “The man who once likened himself to Jacob Zuma in that both were targets of persecution clearly shares another of the former president’s qualities: the ability to evade accountability.”

This article appeared as part of The Wrap, 24 February 2022. Sign up to receive our weekly updates.