Judging the Judges: The Irony of Political Influence in South Africa's Judiciary Impeachment

In a historic first, the ANC and DA have banded together to impeach one of the country’s top judges for trying to influence other judges to rule in favor of former President Zuma.

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Fifteen years after the offense, Judge President Hlophe of the High Court’s Western Cape division was impeached as per Judicial Service Commission (JSC) recommendation on grounds of violating Section 165 of the Constitution.

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Hlophe allegedly treathened the judiciary’s independence by trying to influence Constitutional Court Judges Nkabine and Jafta to rule in favor of former President Zuma on an arms-deal corruption case.

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Democratic Alliance (DA) MP and shadow minister of justice and constitutional development Glynnis Breytenbach hailed Hlophe’s impeachment as “a pivotal moment in South Africa’s judiciary”.

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Though a case meant to protect the judiciary’s independence, Hlophe’s impeachment has been a very political matter that reveals the judiciary’s vulnerability to political influence.

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South Africa’s top three political parties have had immense influence over Hlophe’s impeachment even beyond the National Assembly.

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The ANC’s, DA’s, and EFF’s influence on this judiciary proceeding is a violation of Section 165 of the Constitution that needs to be investigated further by the Public Protector.

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The Democratic Alliance (DA)

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“The JSC initially dismissed the complaint [agaisnt Hlophe], but after litigation, including by [Freedom Under Law], [in 2011] the decision was overturned,” according to Freedom Under Law (FUL), a public interest organization that has been pushing for the impeachment of Hlophe from the beginning.

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The DA has equally been pushing for the impeachment of Judge President Hlophe from the onset of the allegations against him.

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Both these organizations have used their financial resources to fund legal manauvers to ensure Judge President Hlophe’s impeachment.

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What is concerning is that both these organizations’ biggest funder is Capitec’s billionaire founder, Michiel?Le Roux.

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Le Roux funds the DA through an entity known as Fynbos Ekwiteit (Pty) Ltd, which donated R15 million to the party in the first quarter of the 2023/24 financial year (April to June) according to a report released by the Independent Electoral Commission (IEC).

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FUL is a project of the Millennium Trust, which was established by Le Roux in 2010.

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It is concerning that a historic judiciary proceeding that will be a precedent for the future was mostly bankrolled by one individual.

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Funding a legal battle for roughly 15 years shows commitmment from Le Roux and is a tell of either his loyalty to the prosperity of the country and/or an ulterior motive.

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The DA’s and FUL’s success in impeaching Judge President Hlophe raises the concern of wealthy individuals influencing judiciary proceedings and that of political parties’ ability to influence the judiciary in favor of their objectives.

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The African National Congress (ANC)

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The ANC’s stance on Judge President Hlophe’s impeachment has changed with the changing leadership.

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When the courts overturned the JSC’s initial dismissal of the call for Hlophe’s impeachment, the Zuma administration paid Hlophe’s legal fees to prevent his impeachment.

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The ANC under Zuma supported Hlophe because he was accused of illegally trying to protect the ANC’s then leader – simply put, Hlophe was accused of trying to protect the ANC.

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Following former President Zuma’s resignation in 2018, Judge President Hlophe has been attempting to get the state to cover his legal fees. Hlophe reportedly could not afford to pay for photocopies needed for his appeal against the full Bench ruling.

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Following Zuma’s endorsement of a new political challenger to the ANC, uMkhonto WeSizwe, the ANC suspended him.

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It was not surprising when most ANC MPs voted to impeach Judge President Hlophe – a clear move by the ANC to distance itself from Zuma.

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Speaking at an EFF podcast, Hlophe alarmed that his impeachment was plagued with political influence over the judiciary.

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“When I was suspended by Ramaphosa it was clear to me it was for political reasons […] It is clear to me he did not act?lawfully but acted politically. He was bowing to some political pressure,” said Hlophe.

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The Economic Freedom Fighters (EFF)

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In 2017, the leader of the EFF Julius Malema described Judge President Hlophe as “the most worrying thing about our judiciary.”

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Recently Julius Malema and the EFF had a change of heart and voted against Hlophe’s impeachment.

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Following Hlophe’s impeachment, Malema wrote on social media platform X, “brother, history will absolve you. We need to meet soon and plot the way forward […] form something like Freedom Under Law […] and continue to mark these racists.”

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From being “the most worrying thing about our judiciary” to a brother who will be absolved by history, Hlophe’s relationship with the EFF has dramatically changed with no explanation.

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Hlophe and the EFF critized the FUL as an illegal organization pushing a racist agenda, yet the leader of the EFF wants “the most worrying thing about our judiciary” to mimick such an organization.

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The EFF’s U-turn with Hlophe is not a result of the EFF thinking that Hlophe is innocent, rather it seems to be a play on race – which happens to coincide with the upcoming elections.

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Hlophe was the youngest and the first African to be appointed to the Western Cape Bench. He has been advocating for the “africanization” of South Africa’s laws – a principle which he shares with the EFF.

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It seems that Hlophe’ role in breaking the glass ceiling for African lawyers is enough to absolve him from the consequences of his misconduct in the eyes of the EFF.

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Most signs point to the EFF’s attempt to stop Hlophe’s impeachment as a stunt for electoral support.

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As Malema convictedly put it, “In politics there is what we call tactics and strategy. So sometimes you have to kiss many frogs to arrive at your strategic objective.”

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Is Hlophe just a frog that Malema has to kiss to gain voters in the upcoming national elections?

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The most concerning issue about Hlophe’s impeachment is that politicians and political/judicial analysts agree that this impeachment displayed the political influence that hovers over the judiciary.

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Like Hlophe, DA MP and shadow minister of justice and constitutional development Glynnis Breytenbach said, “[During Hlophe’s impeachment] we also saw political interference.”

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Political interference in judicial proceedings was blatant in this impeachment and ought to be investigated and the perpetrators brought to justice much like Hlophe was – however, it ought not take 15 years.