MIA SWART: John Hlophe is Houdini in a nation of escape artists

After the endless delays in impeaching judge John Hlophe the topic hardly excites anyone any more. Some still believe the law will ultimately prevail more than 15 years since his first act of gross misconduct — but not so fast. Like his longtime friend Jacob Zuma, Hlophe has become the ultimate escape artist. Like Zuma, he might well be the cat with infinite lives.  

The Hlophe impeachment saga had another instalment last  week when parliament’s justice & correctional services portfolio committee set out a six-stage framework for judicial impeachment. Since no SA judge has been impeached for over 100 years, no procedure existed until now.

Ultimately, the committee will have to decide whether parliament will vote on impeachment. If so, a two-thirds majority of the National Assembly will be necessary to finally impeach Hlophe. Judge Nkola Motata, who has also escaped impeachment for more than 15 years, will go through a similar process. 

In the days when Hlophe’s misbehaviour was still actively and publicly debated I called him the enfant terrible of the Cape legal fraternity. Whereas his attempt to influence two Constitutional Court judges to rule in favour of Zuma constituted his most egregious and publicised offence, he has been accused of many other instances of unprofessional conduct and has shown little remorse.

For many years he acted like a man who not only enjoys impunity but deserves it. The right thing for Hlophe to have done would have been to resign and show remorse for his conduct. Yet he stayed in office until President Cyril Ramaphosa dismissed him with immediate effect in December 2022, on the advice of the Judicial Service Commission (JSC). The same goes for Motata, who was put on special leave in 2007 and received a full judge’s salary until he retired in 2017. He continues to receive a judicial pension. 

Hlophe’s Houdini-like manoeuvres say much about the inefficiency of the process of disciplining judges in SA, and our society’s tolerance for those who escape justice. Escaping has become a central feature of the SA experience. For reasons good and bad, escaping seems to be the dominant yearning of many South Africans. The poor yearn to escape the shackles of poverty; the rich to escape SA altogether to find greener grass abroad.  

Hlophe’s rags-to-robe background can be seen as an act of escape in itself. A high academic achiever, he escaped his poor rural background to make it to Cambridge, and from there to one of the most senior judicial positions in the country: judge president of the Western Cape division of the high court.

Most likely, the legacy of the Zondo state capture commission will not be successful prosecution but successful escapes from justice. Speaking at the Anti-Corruption Enforcement conference last week, director of public prosecutions Shamila Batohi lamented the slow pace of state capture cases and said she is as frustrated as the public.

State capture has “ripped out the heart of the rule of law, the central ingredient of the social contract holding us together”, she said. “One of the more pernicious aspects of SA’s version of state capture is that it was an attack from the inside — a stealthy and lethal war waged on the rule of law by the very people whose job it was, and who swore an oath, to protect and promote it”.

It can be argued that in the case of Hlophe a judge himself waged war on the rule of law. But it can also be asked whether the National Prosecuting Authority (NPA) is moving at full speed to prosecute the state capturers. 

The legacy of the Truth & Reconciliation Commission was also one of escape, since most of the perpetrators of apartheid-era crimes and human rights violations who did not receive amnesty have not been prosecuted. And prosecuting apartheid offenders still doesn’t seem high on the NPA’s agenda.

It is astonishing that the populace has not been angrier about the non-prosecution of those who did not receive amnesty. Over time impunity erodes not only the rule of law but damages the moral fabric of our society.  

Necessary as it is, impeaching Hlophe more than 15 years after his case was first referred to the JSC could be too little too late. Those who manage to escape justice for so many years will be empowered by the success of their stalling and evasive strategies.

In a breathtaking illusion in 1918 at New York’s Hippodrome theatre, Harry Houdini made an elephant disappear. Judges should not have a stage for such stunts, tricks and escape acts.

• Swart is a visiting professor at Wits Law School specialising in human rights, international relations and international law.