The Judicial Service Commission (JSC) had not reached a decision on the long-running judicial saga involving him and the judges of the Constitutional Court after a closed-door meeting during most of Monday. Commission spokesperson advocate Dumisa Ntsebeza said the body "deferred the decision" until later in the week, possibly Wednesday, when the candidates for the vacant positions at the Western Cape High Court would also be interviewed.
With impeachment of the judge president of a provincial division a possibility, the matter has become one of the most high profile for post-apartheid South Africa – and has divided the country's legal fraternity.
The justices of the Constitutional Court had, in 2008, laid a complaint of judicial misconduct against Hlophe alleging that he had approached justices Chris Jafta and Bess Nkabinde with the intention of improperly influencing them in a matter before the court involving corruption charges against President Jacob Zuma – then ANC president and an ordinary citizen. Hlophe had laid a counter-complaint against the judges criticising the manner in which they had announced their complaint to the JSC – stating that it impinged on his right to dignity.
In late September this year, the Judicial Conduct Committee – a subcommittee of the commission – found that Hlophe was, prima facie, guilty of impeachable gross misconduct and recommended that a tribunal be set up.
Ntsebeza also confirmed Justice Minister Jeff Radebe gave an assurance that the regulations for such tribunals – which are to be used for misconduct cases involving judges – would be promulgated in Parliament by Wednesday.
Aside from the Hlophe decision, there is another migraine for the JSC: a recent Supreme Court of Appeal judgment found it was required to be more transparent in its decision-making by giving reasons for its decisions to recommend candidates to the president to fill judicial vacancies.
The commission had been legally challenged by the Western Cape Bar after recommending just one appointment to that province's bench following interviews in April last year, despite there being three vacancies and several adept candidates.
Judicial candidates are recommended to the president after gaining a majority from the commissioners – there are 23 commissioners, plus the premier and judge president of a division when high court interviews are conducted – after a secret ballot by the commission, and did not give reasons for its nominations.
The Supreme Court of Appeal found that as an organ of state, the commission was obliged to give reasons for its decisions to ensure accountability and transparency. This could lead to procedural changes for the commission.
Ntsebeza said the commission studied the appeal court ruling and "was fully confident we will be able to comply with its dictates", but no decision had been taken on whether to appeal the ruling. It appears likely that the commission will start giving reasons for its recommendations.
The October round of commission interviews promises to be lively, with the deputy judge president position in the KwaZulu-Natal division being contested by judges Achmat Jappie and Mjabuliseni Madondo.
Madondo faced racism allegations following a previous interview for the same position when he contended the position should be filled by an African as they had experienced a different form of racism to Indians and coloureds.
Also of interest will be the vacancies on the Western Cape High Court bench, which will see some of South Africa's sharpest legal minds – including advocates Owen Rogers, Ashton Schippers and Jeremy Gauntlett – being interviewed.