The General Council of the Bar of South Africa has taken note that Judge President Hlophe has returned from the special leave granted to him at his request by the Minister of Justice and Constitutional Affairs, despite the Minister's request that he remains on special leave until the determination of the complaint against him by the Judicial Service Commission.

It appears that Judge Hlophe was granted leave in terms of Regulation 5 of the Regulations under the Judges Remuneration and Conditions of Employment Act, 47 of 2001 (published under GN R894 in GG 23564 of 5 July 2002).

Judge Hlophe requested  and the Minister granted him special leave pending the determination of the complaint against him. The General Council of the Bar was of the view that both the Judge President's and the Minister's conduct in doing so were appropriate. Hlophe JP is bound by the conditions imposed by the Minister when leave was granted during June 2008.

When the Constitutional Court judges lodged their complaint against Judge Hlophe in the course of last year, the General Council of the Bar took the view that, irrespective of the merits of the complaint (on which the Council has no comment), "It is untenable that, pending the investigation of the complaint, the Judge President stays on active duty. The seriousness and source of the complaint, as well as its ramifications, demand that he goes on special leave.  If he does not do  so voluntarily, the Minister of Justice and Constitutional Development and/or the Judicial Services Commission must see how that can be facilitated as a matter of urgency."

The view of the GCB is that nothing has changed. Judge Hlophe's continuation in office pending the determination of  the complaint would prejudice the administration of justice as well as public confidence in the independence and impartiality of the judiciary.

The General Council of the Bar  therefore supports the Minister's request to Judge Hlophe to remain on leave pending the determination of the aforesaid complaint by the JSC.

Statement issued by the General Council of the Bar of South Africa, February 5 2009

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