By Thabo Mosia
Helen Zille, Chairperson of the DA’s Federal Council, has strongly condemned the appointment of Dr John Hlophe to the Judicial Service Commission (JSC), arguing that his presence compromises the integrity of the judiciary. Zille’s concerns stem from Hlophe’s controversial judicial career, including his impeachment by Parliament following a 16-year legal battle concerning his alleged interference in a Constitutional Court decision favouring Jacob Zuma. On 5 September 2024, Zille stated, “Dr John Hlophe, the former judge president of the Western Cape, was impeached after a 16-year battle… because he attempted to influence judges of the Constitutional Court to rule in favour of Jacob Zuma.”
The Democratic Alliance (DA), alongside civil society groups such as Freedom Under Law (FUL) and Corruption Watch, have brought legal challenges against Hlophe’s appointment, arguing that it undermines the JSC’s ability to maintain public confidence in the judiciary. During the court proceedings, Freedom Under Law’s legal representatives argued that Hlophe’s designation by the National Assembly was “irrational” and did not consider his prior impeachment. Adv. Max du Plessis, representing FUL, highlighted the conflict of interest, stating that a judge who has been impeached should not be allowed to oversee the selection of new judges, as it directly affects public confidence in the judiciary.
FUL’s legal team has presented four key grounds for their challenge. They argued that the National Assembly failed to exercise its discretion under Section 178(1)(h) of the Constitution, which requires careful consideration of candidates for the JSC. Instead, it merely accepted the MK Party’s nomination of Hlophe, without taking into account his prior judicial misconduct. Furthermore, FUL maintained that Hlophe’s appointment violates Section 165(4) of the Constitution, which mandates that all organs of state protect the independence and dignity of the judiciary. This failure, they claim, makes the National Assembly’s decision both unlawful and unconstitutional.
In response to these legal challenges, MK Party spokesperson Nhlamulo Ndhlela dismissed the case as a politically motivated attack. In a statement, the party described the legal action as a “frivolous court challenge” brought by “right-wing and racist organisations” aimed at undermining the MK Party and its leaders. The statement further accused these organisations, including AfriForum, of attempting to divert the party’s focus from its mission to represent the poor and marginalized.
AfriForum, which has launched its own legal challenge in the Constitutional Court, echoed FUL’s concerns, arguing that Hlophe’s appointment to the JSC undermines the credibility of the entire judicial system. Kallie Kriel, CEO of AfriForum, emphasised that it was unthinkable for a judge found guilty of gross misconduct to be part of a body responsible for assessing the integrity and ethics of future judges. AfriForum is pushing for Hlophe’s removal from the JSC, insisting that his continued presence would erode public trust in the judiciary.
This case has attracted widespread media attention due to the implications it holds for the independence of South Africa’s judiciary. The JSC is responsible for selecting and overseeing judges, and critics argue that Hlophe’s presence on the commission will compromise its ability to perform these functions effectively. The court is expected to deliberate on whether to refer the matter back to the National Assembly for reconsideration.
Zille’s remarks on social media further reflect the deep concern within the DA regarding the impact Hlophe’s appointment may have on public confidence in South Africa’s legal system. She pointed out that while the MK Party has the legal right to nominate a member to the JSC, Hlophe’s history of judicial misconduct makes him a profoundly unsuitable candidate for such a critical role.
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