Hlophe was accused of improper interference in the deliberations of the Constitutional Court in litigation involving the interests of Jacob Zuma.
His impeachment was the result of a finding by the Judicial Service Commission that his conduct in this regard amounted to gross misconduct.
The case was politically sensitive because the warrants in question were issued during an investigation by the Scorpions' into alleged corruption by Jacob Zuma, a prominent politician who was the former Deputy President of South Africa and the present leader of the African National Congress (ANC).
[4] The Law Society of South Africa, the umbrella body for attorneys throughout the country, was reported to have expressed its "... grave concern ..." and to have stated that it had "... no doubt that the Constitutional Court judges considered the matter carefully before lodging the complaint".
[5] Attorney Peter Horn, the President of the Law Society of the Cape of Good Hope, representative body of attorneys in the Western and Eastern Cape, urged Judge Hlophe to take a leave of absence and that there needed to be a "... sense of great urgency ...", and that the JSC should make a special effort to get its members together before the end of the week.
Judge Jafta confirmed that a similar approach had been made to him, while refusing to divulge certain parts of the conversation, which he said were confidential and which he would keep so as a result of his long acquaintance, and friendship, with Hlophe.
[16] Indeed, in parallel to the Hlophe application, several media houses, led by eTV, had approached the Gauteng High Court for an order mandating that the JSC's hearings should be open to the public;[17] Judge Nigel Willis granted such an order in eTV v Judicial Service Commission on 31 March 2009, the same day that the Supreme Court of Appeal ruled against Hlophe in his rights claim.
[19] A further request for postponement was denied and the hearings commenced on 7 April in Hlophe's absence; Chief Justice Pius Langa was the first witness called to provide evidence.
The subcommittee was chaired by Judge President Bernard Ngoepe and also included Marumo Moerane and Ishmael Semenya.
"[29] In a separate case regarding the same decision of JSC, Judge of Appeal PE Streicher of the SCA, with Judges Brand, Cachalia, Theron and Seriti concurring, also upheld an appeal brought by the not-for-profit advocacy group Freedom Under Law, finding that "the decision of the Judicial Service Commission at its meeting on 15 August 2009, that 'the evidence in respect of the complaint does not justify a finding that Hlophe JP is guilty of gross misconduct' and that the matter accordingly be 'treated as finalised', is reviewed and set aside" and setting aside a previous North Gauteng High Court finding to the contrary.
[32] When the JSC upheld the gross misconduct finding in August 2021, it referred to the National Assembly its recommendation for Hlophe's impeachment.
[33] Section 177 of the Constitution of South Africa allows for judicial impeachment on grounds of misconduct, but only by a resolution supported by two-thirds of the National Assembly.
Although the National Assembly began to process the JSC's referral in 2021,[34] it opted in September of that year to put the matter into abeyance until Hlophe had exhausted his legal appeals.
[35][36] On 22 November 2023, the Portfolio Committee on Justice and Correctional Services concluded its deliberations and recommended that the House should impeach Hlophe.
[37] Over the next few weeks, Hlophe launched, in succession, two attempts to block a vote of the full House: in January, he applied for direct access to the Constitutional Court, where he intended to challenge the constitutionality of the parliamentary proceedings;[38] and in February, he applied in the Western Cape High Court for an urgent interdict against the impeachment vote.
In the wake of the initial revelations in 2008, Zuma's political party, the governing ANC, launched a populist attack on the "counter-revolutionary" posture of the Constitutional Court.
[47] The party's secretary-general, Gwede Mantashe, told the Mail & Guardian:We are saying this [the Hlophe complaint] is a psychological preparation of society for their [judges] pouncing.
[48] The JSC's Judicial Conduct Committee order retired Constitutional Court Justice Johann Kriegler to retract critical remarks he made about Hlophe while the saga was ongoing.