Judge President Mandlakayise John Hlophe v Premier of the Western Cape Province; Judge President Mandlakayise John Hlophe v Freedom Under Law and Others

The Constitutional Court was seized with two related applications for leave to appeal brought by Judge President John Hlophe. The matters arose from complaints lodged against him and proceedings before the Judicial Service Commission (JSC). A significant number of Constitutional Court judges were directly involved in the underlying complaint, either as complainants, witnesses, or mediators. As a result, several judges recused themselves. Initially, the cases were set down for oral argument on limited procedural and constitutional issues. However, after further recusals, including that of the Deputy Chief Justice, the number of available judges fell below the constitutionally required quorum of eight. The Court therefore removed the matters from the roll and postponed them to a later date when an acting appointment would restore a quorum.

The matters were removed from the roll for hearing on 22 September 2011 and postponed to 29 November 2011 due to the absence of a constitutionally required quorum.

This decision is significant for clarifying the strict constitutional requirement of quorum in the Constitutional Court and underscoring the importance of judicial recusal to preserve impartiality. It illustrates the institutional challenges that arise when many judges are conflicted and highlights the limits of the Court’s ability to act without constitutional compliance, even in matters of great public importance.