in
Cape Town 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 (later a division of the
High Court of South Africa). He took office on 1 January 1995 and, aged 35, he was one of the youngest judges in the country. During his early tenure as an acting judge and judge, he was the protégé of Judge President
Gerald Friedman. 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".'
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". 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. 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, protestors outside the Cape High Court on 10 March 2008
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.
Mulaudzi v Old Mutual In 2014, Hlophe presided in an application in
Mulaudzi v Old Mutual, a matter in which his personal attorney, Barnabas Xulu, represented the applicant; he granted the application over the objections of the respondent,
Old Mutual, who argued that his relationship with Xulu created a
reasonable apprehension of bias. In a 2017 judgment described as "scathing", the Supreme Court of Appeal overturned Hlophe's order, saying that the respondents were correct to point out a reasonable apprehension of bias; per Judge of Appeal
Nathan Ponnan, the problem was not only Hlophe's relationship with Xulu but also that his judgment relied on shallow and partial reasoning.
2005 racism row In February 2005, South African media houses received a leaked copy of a 43-page report on racism among the lawyers and judges of the Cape Provincial Division; it had been compiled by Hlophe and submitted to the national
Minister of Justice,
Brigitte Mabandla. Among other things, the report singled out three individuals as racist: Deputy Judge President Traverso, Senior Counsel Gauntlett, and Hlophe's predecessor, retired Judge President King. Observers believed that the report – and particularly Hlophe's hostile attitude toward Gauntlett – stemmed from lingering resentments over the 2004
New Clicks saga; Amid the ensuing furore, Chief Justice
Arthur Chaskalson appointed a committee to consider the report and investigate Hlophe's claims. Hlophe denied having said this, but another lawyer, Senior Counsel Dirk Uijs, signed an affidavit stating that he had been present in the meeting and had heard the exchange; this affidavit was attached to a formal complaint laid by the Cape Bar against Hlophe at the
Judicial Service Commission (JSC). Also in October, press reported that Hlophe had disparaged Western Cape Judge
Wilfred Thring while attending a cricket match in a social capacity. According to these reports, Hlophe said that he had allocated
Mikro Primary School v Western Cape Minister of Education, a high-profile
language rights matter, to Thring "because I knew he would fuck up the trial and then it could be set right on appeal". These remarks were apparently made in the presence of
Norman Arendse, the chairperson of the General Council of the Bar, who reportedly told Chief Justice Chaskalson about the incident in a letter. While Hlophe denied the reports as part of a
smear campaign against him, On 14 October, Judge
Siraj Desai drafted and published a statement in defence of Hlophe; signed by 13 of the Cape Division's 28 judges, the statement expressed alarm that the allegations against Hlophe were "patently calculated to impede the transformation agenda of the judiciary". The Black Lawyers' Association (BLA) likewise said that it would lodge a complaint with the
South African Human Rights Commission about what it described as the Cape Bar Council's opposition to demographic transformation. Later that week, during a three-day JSC meeting in
Cape Town, recently appointed Chief Justice
Pius Langa presided over attempts to negotiate a resolution to the controversy, and the Cape Bar Council dropped its complaint against Hlophe in respect of the Greeff incident. Langa announced on 19 October that no further action would be taken against any of the parties, all of whom had agreed to "stabilise relationships between the judiciary and legal profession of this province".
Conflict of interest complaints In 2006, the JSC confronted a mounting stack of complaints against Hlophe, including several lodged by opposition politician
Steve Swart, a representative of the
African Christian Democratic Party, and by advocate Peter Hazell, who sought Hlophe's impeachment. The most important complaints related to alleged
conflicts of interest that had been the subject of media reports and considerable controversy. In 2006 and 2007, the JSC deliberated at length on the question of whether the complaints provided grounds for Hlophe's
impeachment. Hlophe responded with consistent denials of wrongdoing and occasionally with levity: in one court hearing in the
Travelgate prosecutions, Hlophe jokingly asked whether he was required to disclose having accepted a bottle of water from lawyer Seth Nthai.
Smith Tabata Buchanan Boyes The first conflict-of-interest complaint pertained to the Cape Town law firm
Smith, Tabata, Buchanan, Boyes (STBB), which had awarded a
bursary to Hlophe's son Thuthuka. An STBB partner,
Derek Wille, had become friends with Hlophe at the University of Natal in 1982 and had been an acting judge on Hlophe's bench. The firm denied that Hlophe had received any special treatment, and the JSC dismissed the complaint in 2006, accepting Hlophe's evidence that he had lacked any knowledge of the bursary payments to his son – at the time, his son was not living at home but was employed as a boarder-master at the
South African College Schools. Hlophe's relationship to Oasis was first reported on in early 2005, when Oasis was suing Hlophe's colleague, Judge Siraj Desai, for
defamation. Civil lawsuits against sitting judges could not go ahead without the authorisation of the Judge President and, in the case of Oasis, Desai alleged that Hlophe's authorisation had been improperly given. At the time,
IOL reported that Hlophe's Umlibo Trust part-owned the Oasis Asset Management Company, one of the Oasis Group's holdings. According to initial reports, he received
R10,000 a month as a legal consultant to the company between April 2002 and March 2003. The evidence also showed that Hlophe had declined to authorise the defamation lawsuit on several occasions from December 2001 onwards, before in October 2004 he allowed the lawsuit to go ahead. On the accusation that he had failed to disclose a conflict of interest, he said that former Justice Minister
Dullah Omar had given him permission to receive money from a private company. The incumbent Justice Ministry denied having any knowledge of such an agreement, Critics suggested that Hlophe's receipt of the payments might constitute a criminal violation of the
Prevention and Combating of Corrupt Activities Act, In April 2006, Justice Minister Mabandla said that she had granted Hlophe's request to take long leave while the JSC was investigating the allegations. He told the press that he would use the break to finish writing his autobiography,
From Gardener to Judge. In early December 2006, the JSC announced that it had decided not to pursue the matter, saying that there was no evidence to contradict Hlophe's assertion that Minister Omar had authorised him to receive money from Oasis. The
Mail & Guardian reported that the JSC was starkly divided on the matter, with advocate
George Bizos leading the charge for a full public investigation. By mid-2007, the matter had been revived by Hazell's impeachment campaign and by Hlophe's other antagonists in civil society. However, on 4 October 2007, the JSC announced that it would not pursue the matter further. Chief Justice Langa said that the panel was in unanimous agreement that it had been inappropriate for Hlophe not to disclose his relationship with Oasis, but nonetheless had been divided on whether there was sufficient evidence to sustain a public inquiry and impeachment. Sources told the
Mail & Guardian that Bizos and
Craig Howie had been among the members pushing for further investigation, while Seth Nthai and
Bernard Ngoepe were among those who opposed it.
JSC exoneration The JSC's announcement in October 2007 led to a flurry of mutual recriminations in the legal society, as Hlophe's critics condemned what they described as a
cover up by the JSC. 14 legal academics at the
University of Cape Town drafted and signed an open letter expressing concern about the JSC's decision. More controversially, retired Constitutional Court Justice
Johann Kriegler wrote an open letter in the
Sunday Times in which he argued that Hlophe was not fit to hold judicial office. Eight
silks of the Cape Bar signed another open letter, this one in the
Cape Times, expressing agreement with Kriegler and calling on Hlophe to resign from the bench. Indeed, the
Mail & Guardian reported that members of the Cape Bar Council had met to discuss the matter and were considering organising a boycott of the court. The BLA's Dumisa Ntsebeza argued that Kriegler's statement "evinced disrespect" for the JSC.
Defamation lawsuit In March 2008, Judge
Steven Majiedt of the
Northern Cape High Court granted Winston Nagan authorisation to sue Hlophe for
defamation. Nagan, a law professor at the
University of Florida, had formerly been an acting judge in Hlophe's division and claimed that Hlophe had defamed him in remarks made in the courtroom in 2007; Hlophe had blamed Nagan for delays in certain judgments, saying that other judges had to step in to finalise Nagan's cases. Hlophe opposed the suit. He was served with summons in a R6-million claim in July 2009.
Constitutional Court nominations In mid-2009, a private lobby group named the Justice for Hlophe Alliance lodged an unusual "political-style campaign" calling for Hlophe to be appointed as
Chief Justice of South Africa after Pius Langa's retirement.
Paul Ngobeni was regarded as the leader of this campaign, Observers believed, however, that his chances were hurt by a pending complaint against him at the JSC .''''''
Sandile Ngcobo became the sole nominee for the Chief Justice position, though Hlophe's supporters continued to position Hlophe as Ngcobo's future successor. Hlophe was, however, one of more than 20 candidates shortlisted for possible appointment to four other vacancies on the Constitutional Court bench. Indeed, the
Mail & Guardian identified him as a frontrunner. The JSC interviewed him in
Kliptown in September 2009 in the presence of a small group of supporters wearing Hlophe-branded T-shirts. His interview was tense – among other things, he was pressed about the pending and past misconduct complaints – and he was not among the seven judges whom the JSC recommended for elevation. Over a decade later, as Chief Justice
Mogoeng Mogoeng approached retirement in 2021, Hlophe was again nominated for the Chief Justice position, on that occasion by the Black Lawyers Association, the SA Natives Forum, and Democracy in Action. The
Economic Freedom Fighters also endorsed his candidacy. However, he was not shortlisted for the vacancy.
Gross misconduct and impeachment In June 2008, the bench of the
Constitutional Court lodged a formal complaint against Hlophe at the JSC, alleging that he had attempted improperly to interfere with its deliberations in the matter of
Thint v NDPP. That matter concerned the
ongoing corruption investigation into politician
Jacob Zuma, who became the
President of South Africa in 2009. Justices
Bess Nkabinde and
Chris Jafta alleged that Hlophe had attempted to sway their judgment in Zuma's favour. These allegations launched a 15-year-long public controversy and protracted multi-party litigation in multiple courts. At the height of the scandal, Hlophe was placed on special leave between May 2008 and September 2009. He denied the justices' allegations and claimed that they were part of a political conspiracy against Zuma's allies. In April 2021, a Judicial Conduct Tribunal concluded unanimously that Hlophe had committed gross and impeachable misconduct in attempting improperly to influence Justices Nkabinde and Jafta. The tribunal, chaired by retired Judge Joop Labuschagne, found that Hlophe's actions violated the
Constitution and "seriously threatened" the independence and dignity of the Constitutional Court. In August 2021, this finding was endorsed by the JSC, which referred to the
National Assembly its recommendation that Hlophe should be impeached in terms of Section 177 of the Constitution. While Hlophe pursued legal appeals, the JSC recommended in July 2022 that Hlophe should be suspended from judicial office pending impeachment proceedings; President
Cyril Ramaphosa effected his suspension in December that year. Despite further legal challenges by Hlophe, the National Assembly adopted a resolution to impeach him on 21 February 2024. On 5 March, the
Sunday Independent reported that President Ramaphosa had written to Hlophe to inform him that his impeachment had been effected on 1 March. Ramaphosa released public confirmation the following day. Hlophe became the first South African judge to be impeached since the end of apartheid, followed by
Nkola John Motata.
Misconduct complaint by Patricia Goliath Allegations On 15 January 2020, while Hlophe was battling the Constitutional Court justices' complaint against him, Western Cape Deputy Judge President
Patricia Goliath lodged her own complaint against him at the JSC. The complaint traversed a wide range of serious allegations, including that Hlophe had physically assaulted another judge in chambers (later identified as Judge
Mushtak Parker), that he had created "a climate of fear and intimidation" in the Western Cape Division, and that he had given
nepotistic favourable treatment to his wife, Judge
Gayaat Salie-Hlophe. Goliath's compliant said that Hlophe had sidelined her to such an extent that she occupied the deputy judge presidency "in name only"; Commentators wondered whether this was an oblique reference to a
domestic violence incident. Perhaps most seriously, Goliath alleged that, in 2015, Hlophe had intervened in the administration of
Earthlife Africa Johannesburg v Minister of Energy, a politically sensitive case in which civil society groups lodged a successful challenge to President Zuma's
Russian nuclear deal. and Hlophe alleged that Goliath had encouraged Salie-Hlophe to "file charges of a fake assault" after the 2017 incident, which he denied had involved domestic violence. The General Council of the Bar urged Hlophe and his wife to take special leave pending a JSC inquiry. The Judicial Conduct Committee appointed
Nambitha Dambuza, an appellate judge, to investigate. In March 2021, Dambuza reported that there was no evidence of misconduct by Salie-Hlophe and recommended a broader investigation of the 2017 domestic incident, to include the question of whether Goliath herself had committed misconduct against the Hlophe couple. In November 2023, however, the Judicial Conduct Committee reversed Dambuza's recommendation, concluding that there was no need to investigate Goliath and that Hlophe should face an impeachment charges in respect of the allegations contained in Goliath's complaint. That process became moot when Hlophe was impeached on separate charges.
Alleged assassination plot In mid-2020, at the peak of the dispute between Goliath and Hlophe, a whistleblower alleged that Hlophe had contracted hitmen to
assassinate Goliath. Hlophe strongly denied the allegations, which his lawyer called "a corrupt attack on him and ultimately on
judicial independence", and he called for a judicial commission of inquiry into the origin of the allegations. == Political career: 2024–present ==