South Africa


Death by affidavit: John Hlophe throws a 569-page whopper at court to stop impeachment 

Western Cape Judge President John Hlophe. (Photo: Gallo Images / Foto24 / Nelius Rademan)

A weighty notice of motion was filed on behalf of Western Cape Judge President John Hlophe on 13 September against the Judicial Service Commission (JSC), the President of South Africa, the Minister of Justice and Correctional Services and the Speaker of the National Assembly.

The Judge President of the Western Cape’s legal representative, Barnabas Xulu — who was found by Judge Phillip Zilwa on 5 August to have acted improperly in another matter related to R20-million he owes to the state in ill-gotten legal fees — appears to still be lawyering up for Hlophe in this last-ditch bid to salvage his nosediving career.

Hlophe’s long walk into what everyone knows is a legal cul-de-sac ended on 25 August when the JSC announced it had decided to uphold an April 2021 report and recommendation of a Judicial Conduct Tribunal that Hlophe face impeachment.

In a late-night briefing On 8 September,  in preparation for the potential impeachment vote by the National Assembly, parliament’s committee on justice and correctional services began tightening the procedural legal nuts and bolts of the process when it met with Parliament’s legal advisers who stated clearly that the guilty verdict by the JSC could not be altered and would stand during the impeachment vote process. 

The role of the NA was that of accountability and strictly circumscribed members were informed in no uncertain terms. No new inquiry would be conducted, as the first stage of the impeachment process — the guilty verdict by the JSC — was set in stone.

It took five days for Xulu to collate the 569 pages in which he seeks to save his controversial client from walking the impeachment plank.

What both Hlophe and his lawyer should understand by now is that no court at this stage has stopped Parliament from fulfilling its constitutional duty.  

Nonetheless, we leave it there for nature and the law to take their course.

Hlophe is hoping firstly that the application will be regarded by the court as an urgent one, that he will stave off suspension by the President as well as stick a spoke in the already-grinding wheels of Parliament’s impeachment process.

Going all the way, Hlophe intends to argue that the JSC was not legally constituted when it made its findings in the first place.

The damning evidence which led to the finding of gross misconduct — in that Hlophe flew up to Joburg and made a turn at the Constitutional Court in 2008 prior to a matter involving former president Jacob Zuma — is not contested. 

We have sat with the intricacies of this shameful episode for 13 years so we know the ins and outs.

Hlophe begins his legal shotgun by targeting almost everyone in the JSC.

“Neither the Chief Justice, the Deputy Chief Justice, the President of the Supreme Court of Appeal nor the Deputy President of the SCA had formed part of the JSC,” he states adding that Section 1781 (a) and (b) read with section 178 (7) of the Constitution were not complied with.

Acting Chief Justice, Sisi Khampepe was neither the Chief Justice nor a Deputy Chief Justice at “the taking of the JSC decision” and that she, therefore, did not have a lawful standing to participate, claimed Hlophe.

Sections 178 (1) (f) and 178 (8) of the constitution were ignored also, he argued, in that “a practising attorney nominated from within the Attorneys’ profession to represent the profession as a whole and appointed by the President was also not part of the meeting”.

Just to clear it all up, Hlophe adds that President Cyril Ramaphosa was not asked to appoint “an alternate for the said absent member of the attorney’s profession.”

Khampepe and Judge Boissie Mbha “lacked the constitutional standing to participate in the JSC meeting” and their presence there “rendered the proceedings a nullity,” said Hlophe.

Turning the barrel on JSC members, Hlophe said that Khampepe, Mbha, Judge President Dunstan Mlambo and Premier of the Western Cape Alan Winde, all had conflicts of interest or “bias or reasonable apprehension of bias” and were “automatically disqualified from participating”.

Tossing in a smoke bomb to add to the mirrors, Hlophe opined that proceedings and decisions taken “were therefore unconstitutional and invald”. Over and above that, the majority decision handed down by the JSC was also invalid and had to be set aside.

Hlophe wants the Judicial Conduct Tribunal report tossed on the scrap heap of history as a cherry on top of the pyre.

The findings of the majority, he added “violated the right to equality”.

The respondents were requested by Hlophe to respond by Wednesday 15 September. DM


Comments - Please in order to comment.

  • Nick Griffon says:

    This is a monster of the JSC’s own making.
    They should have dealt with this 10 years ago.
    Bloody useless clowns.

    • Alley Cat says:

      True. But interesting how his deposition shows a huge understanding of the constitution and the legal process.
      If only he had used his considerable talents to be an exemplary and unbiased judge instead of chasing fancy cars etc.

    • jcdville stormers says:

      Another Stalingrad exponent,Zumaite,hopefully he will be gone in the near future

  • Ediodaat For Today says:

    These are most probably the last kicks of a dying horse. I am still not sure why Ramaphosa has not suspended him. He has the power to.

    • Nick Griffon says:

      If you are waiting for Ramaphosa to do the right thing you are going to wait until the next extinction level event meteor strikes earth.
      He had 5 years to right so many wrongs, but instead, he moved Arthur Frazer into a position which he KNEW will get Zuma parole. Half his cabinet are obvious criminals.
      Priority list for CR is as follows:
      1) Personal wealth for himself (at any cost)
      2) Personal wealth for his billionaire family (Patrice etc etc etc)
      3) Personal wealth for ANC cadres (at any cost)
      4) Personal wealth for ANC donors – though that became a bit more difficult with recent changes
      5) ANC
      6) Unions
      7) SACP
      8) And then ver ver ver last by a long shot – the tax payers in SA.

  • Dennis Bailey says:

    Today. So no doubt an eleventh hours court interdict on someone for something. How these court types love their interdicts.

  • Ginny Swart says:

    One question: why does anything to do with legal processes take so long to get to in this country?

  • Colette Hinton says:

    How can this circus have continued for 13 years? Only in South Africa!

    • Grenville Smith says:

      Not sure that it’s only South Africa though. India’s legal system moves at glacial pace too.

      But we all live in hope that justice will be done.

      But as the trope goes: “It’s the hope that kills you.”

  • Wayne Harris says:

    The real concern here is the lack of integrity & shame from a person who should be held & should hold himself to a much higher standard. We know that politicians, and ANC politicians in particular, do not have a shred of integrity nor self esteem nor shame, but a senior judge – the mind boggles!

  • Pet Bug says:

    Brilliant Marianne, you nailed the arguments presented in one of the shortest articles I’ve read in a looong while.
    569 pages of posturing, asides and smoke bombs whittled down to: narcissistic persecution syndrome.

  • Johan Buys says:

    clients and lawyers are each known by the company they keep.

    With the gangster drug dealers and their pond scum attorneys, it usually ends in one or both shot up in a driveway – probably gotten there by opposing gangs and/or learned colleagues, with respect.

    Who beside Hope / Zuma would still use Barnabas Xulu? unless they wanted to attract serious media attention?

  • Tony Reilly says:

    Last kicks of a dying horse 😒

  • SAM VAN WYK says:


  • Tim Price says:

    Shameless, just like any other deployed cadre and Zumite!

  • Carol Green says:

    I take my hat off to you Marianne for wading through 569 pages and I’m so sorry you had to do it!
    But thank you for putting it together so succinctly for the rest of us who don’t have the time / inclination 🙏🏽🙏🏽🙏🏽.

Please peer review 3 community comments before your comment can be posted


This article is free to read.

Sign up for free or sign in to continue reading.

Unlike our competitors, we don’t force you to pay to read the news but we do need your email address to make your experience better.

Nearly there! Create a password to finish signing up with us:

Please enter your password or get a sign in link if you’ve forgotten

Open Sesame! Thanks for signing up.

We would like our readers to start paying for Daily Maverick...

…but we are not going to force you to. Over 10 million users come to us each month for the news. We have not put it behind a paywall because the truth should not be a luxury.

Instead we ask our readers who can afford to contribute, even a small amount each month, to do so.

If you appreciate it and want to see us keep going then please consider contributing whatever you can.

Support Daily Maverick→
Payment options

Daily Maverick Elections Toolbox

Download the Daily Maverick Elections Toolbox.

+ Your election day questions answered
+ What's different this election
+ Test yourself! Take the quiz