By Thabo Mosia
The Democratic Alliance (DA), Freedom Under Law (FUL), and Corruption Watch are set to present their case before the Western Cape High Court on Thursday, in a bid to challenge Parliament’s controversial decision to appoint uMkhonto weSizwe (MK) Parliamentary leader John Hlophe to the Judicial Service Commission (JSC). This appointment has ignited significant backlash, primarily due to Hlophe’s contentious history, including his involvement in judicial misconduct.
The Grounds for the Legal Challenge
The core of the legal battle revolves around Hlophe’s history of judicial misconduct. His tenure as the Judge President of the Western Cape High Court was marred by a series of allegations, most notably his attempt in 2008 to influence Constitutional Court justices to rule in favour of former President Jacob Zuma in a corruption case. The Judicial Conduct Tribunal found him guilty of gross misconduct, which ultimately led to Parliament’s vote for his impeachment earlier this year .
Despite his impeachment, Hlophe was sworn in as an MP for the MK Party in June 2024 and was later appointed to the JSC. The DA, alongside FUL and Corruption Watch, argues that this appointment undermines the integrity of the JSC, a body responsible for maintaining the ethical and functional standards of South Africa’s judiciary. The DA contends that Parliament’s decision was irrational and incompatible with the constitutional mandate of upholding judicial independence .
Hlophe’s Role in the JSC and the Impeachment Process
Hlophe’s appointment to the JSC is particularly controversial because the very body he now sits on had previously recommended his impeachment. The JSC plays a critical role in the judicial appointment process, making it even more contentious that a person with a record of misconduct is involved in selecting and disciplining judges. The DA’s legal team, supported by FUL, will argue that a person found guilty of compromising judicial impartiality should not be allowed to sit on a commission designed to safeguard the judiciary .
While there is no legal provision preventing an impeached judge from becoming an MP or serving on the JSC, the applicants argue that Parliament’s decision ignored key ethical concerns. The DA’s Karabo Khakhau emphasised that “a person who has been found guilty of failing to uphold judicial discipline cannot serve on a body responsible for judicial appointments and discipline.” This argument is set to be a central point in the case as the DA seeks an urgent interdict to prevent Hlophe from taking his seat on the JSC until the legal review is completed .
Implications for South Africa’s Judiciary
The outcome of this case holds significant implications for the independence and reputation of South Africa’s judiciary. Civil society organisations like FUL argue that allowing someone with Hlophe’s track record to serve on the JSC undermines public confidence in the judiciary. This case, therefore, goes beyond the specific appointment of Hlophe—it raises broader questions about accountability and the standards required for those overseeing the judiciary .
In addition to seeking an urgent interdict, the applicants are asking the court to set aside Hlophe’s appointment entirely, sending the decision back to Parliament for reconsideration. They argue that the National Assembly failed to properly exercise its discretion when designating Hlophe to the JSC and that it acted unconstitutionally by not considering the negative impact his appointment would have on the judiciary’s credibility .
The Broader Political Context
This case also highlights the political dynamics surrounding Hlophe’s appointment. The DA remains the only political party actively challenging the appointment, although parties such as the African Christian Democratic Party (ACDP) and the Freedom Front Plus had objected to his nomination during the National Assembly’s deliberations. Parliament’s decision to appoint Hlophe, despite his impeachment and the subsequent backlash, has been viewed by many as politically motivated, further deepening divisions within South Africa’s legal and political spheres .
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