Dr John Hlophe, MP
By Sello Masilo , Digital Journalist
AfriForum has approached the Constitutional Court to challenge the recent appointment of former Western Cape Judge President, Dr John Hlophe, to the Judicial Service Commission (JSC). This move follows the National Assembly’s decision to appoint Hlophe, despite his impeachment for gross misconduct earlier this year.
Background
Dr John Hlophe, a former judge president of the Western Cape High Court, was found guilty of gross misconduct by the Judicial Service Commission in February. The charges against him date back to 2008, when he allegedly attempted to influence two Constitutional Court judges to rule in favour of former president Jacob Zuma in his corruption case. Following this, Hlophe was impeached by Parliament, making him the first judge to be removed from office post-1994.
Despite this, the National Assembly voted on 9 July 2024 to appoint Hlophe as a member of the JSC. This decision has sparked significant controversy, with several civil society organisations, including AfriForum and Freedom Under Law, questioning the rationality and legality of the appointment.
AfriForum’s Legal Challenge
AfriForum, represented by CEO Kallie Kriel, has initiated legal proceedings, requesting the Constitutional Court to declare Hlophe’s appointment irrational, unlawful, and contrary to the National Assembly’s constitutional duty. The organisation has already served court papers electronically to the Speaker of Parliament, Hlophe, and the MK party, and plans to file an urgent application in the coming week.
Kriel argues that Hlophe’s appointment undermines the credibility of the judiciary, stating, “Dr Hlophe himself was found unfit to serve as a judge due to dishonesty and gross misconduct. It is therefore unthinkable that Dr Hlophe can now assess aspiring judges. We will fight Hlophe’s appointment because it undermines the credibility of the judiciary.”
Implications for Judicial Independence
AfriForum’s court documents highlight the National Assembly’s duty, under section 165 of the Constitution, to assist and protect the courts to ensure their independence, impartiality, dignity, and efficiency. By appointing Hlophe, AfriForum argues that the National Assembly has not only neglected its constitutional duty but acted contrary to the Constitution.
Kriel emphasises the importance of maintaining public trust in the judiciary, stating that Hlophe’s presence in the JSC would severely undermine the credibility and independence of the judiciary, as well as the rule of law. The organisation fears that judges appearing before Hlophe for interviews would face ethical and integrity questions, given Hlophe’s own history of misconduct.
The Way Forward
AfriForum’s application to the Constitutional Court seeks an urgent order to declare Hlophe’s appointment invalid and to instruct Parliament to establish mechanisms and rules to supervise the JSC, as required by section 55(2) of the Constitution. The case, if successful, could have far-reaching consequences for the functioning and independence of the JSC and the judiciary in South Africa.
With interviews for prospective judges scheduled for October, AfriForum stresses the urgency of resolving this matter to prevent further erosion of public confidence in the judiciary. The outcome of this case will be closely watched, as it holds significant implications for the rule of law and judicial independence in South Africa.
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