John Hlophe. Picture: TREVOR SAMSON
John Hlophe. Picture: TREVOR SAMSON

Western Cape judge president John Hlophe has withdrawn as a judge from the case in which public protector Busisiwe Mkhwebane is challenging the constitutionality of parliament’s impeachment rules.

Business Day has reliably learnt the judge president said in a letter to the parties on Monday that he was withdrawing, having considered a letter from the DA seeking his recusal last week. His stated reason was public statements made by himself and his lawyers.

Hlophe had originally allocated himself, along with judges Elizabeth Baartman and Mokgoatji Dolamo, to hear the politically sensitive case, which is scheduled to begin on June 7.

Mkhwebane is challenging the constitutionality of parliament’s new impeachment rules, which have only recently been developed and are to be used for the first time in the impeachment process against her, which is still in its early stages.

The DA brought the motion to impeach Mkhwebane in parliament and is therefore a party to the case.

One court day before the start of the public protector’s court case — on June 4 — the Judicial Service Commission is expected to meet to consider whether Hlophe is guilty of gross misconduct and whether he should himself face impeachment proceedings in parliament.

This comes after a judicial conduct tribunal found him guilty of gross misconduct, saying that he had in 2008 attempted to influence the outcome of a Constitutional Court judgment in favour of former president Jacob Zuma.

At the time Zuma was president of the ANC and the judgment, connected to corruption charges against him, was widely believed to be critical to his chances of becoming president of the country. According to the constitution and the Judicial Service Commission Act, the tribunal’s finding must be confirmed by the commission before it can be referred to parliament. The Judicial Service Commission said in April that Hlophe could not, in law, be suspended until the commission had made a decision that he was guilty of gross misconduct.

However, the Judicial Service Commission has, in the past, taken more than a year to make a decision on tribunal findings.

Public utterances

It is understood Hlophe’s stated reason for withdrawing is not related to the Judicial Service Commission process but to public utterances that he has made and that have been made on his behalf by his lawyers.

Over the years, Hlophe has been vocal in his view that the DA has vociferously campaigned against him — a claim his legal team recently repeated in submissions to the gross misconduct tribunal.


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