The Western Cape Division of the High Court has interdicted impeached judge and uMkhonto Wesizwe party (MK) deputy president John Hlophe from taking part in the Judicial Service Commission (JSC) processes, pending a review of the National Assembly’s decision to designate him to the commission. (Photo: Gallo Images / Luba Lesolle) The Western Cape Division of the High Court has interdicted impeached judge and uMkhonto Wesizwe party (MK) deputy president John Hlophe from taking part in the Judicial Service Commission (JSC) processes, pending a review of the National Assembly’s decision to designate him to the commission.
The Court handed down judgment on Friday morning, in three separate applications brought by the DA, Freedom Under Law and Corruption Watch, challenging Hlophe’s designation to the JSC.
In its judgment, the court granted an interim interdict in favour of the DA and Corruption Watch’s applications, preventing Hlophe from participating in the JSC processes, pending Part B of their cases where they are seeking final relief from the court declaring the National Assembly’s decision to designate Hlophe to the JSC unlawful, or pending the determination of a similar case before the Constitutional Court.
This means Hlophe is now barred from the JSC sittings in October.
Freedom Under Law had sought a final order from the Western Cape Division of the High Court, declaring the National Assembly’s decision to appoint Hlophe to the JSC unconstitutional and invalid, setting the decision aside and referring it back to the National Assembly to take the decision afresh in accordance with the court’s judgment.
On Friday, the court postponed Freedom Under Law’s application to be heard simultaneously with Part B of the DA and Corruption Watch’s case, or until the case before the Constitutional Court is determined.
In February, Hlophe, the former Western Cape judge president, became the first person to be impeached as a judge in democratic South Africa, after a parliamentary vote in favour of his removal.
His removal followed a JSC process that found him guilty of gross misconduct, in that he had tried, in 2008, to influence two Constitutional Court judges to “violate their oaths of office” and to rule favourably in a matter involving former president Jacob Zuma.
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He was resurrected as an MP by uMkhonto Wesizwe party (MK) in June 2024, and was subsequently nominated by that party as its representative on the JSC.
The National Assembly sanctioned his nomination and, on 9 July 2024 it designated Hlophe as one of six members of the National Assembly to serve on the JSC – the same body that found him guilty of gross misconduct. The JSC is made up of 23 members and bears the responsibility of interviewing and recommending candidates for judicial appointment, and also of considering complaints against sitting judges.
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The National Assembly’s decision to designate Hlophe to the JSC was immediately challenged in the Western Cape High Court by the DA, Freedom Under Law and Corruption Watch. The cases brought by the DA and the two non-government organisations (NGOs) were heard in tandem in the Western Cape Division of the High Court on 5 and 6 September 2024.
MK and Hlophe opposed the applications.
The DA and the two NGOs asked for a ruling from the Western Cape Division of the High Court before the JSC sitting in October.
The JSC is scheduled to hold interviews for judicial candidates between 7 and 11 October 2024. This includes interviews for the Judge President of the Western Cape High Court (a position Hlophe previously held), as well as for the Constitutional Court – the court before which Hlophe sought to challenge his impeachment.
The applicants argued Hlophe’s participation in the interview process would undermine the integrity of the JSC and public confidence in any of the candidates appointed in the October process.
Read more:: Hlophe’s last stand against impeachment — conflict quagmire poses quandary for ConCourt
In a statement following the judgment, the DA welcomed the court’s decision. “This is a landmark victory for the DA and for the integrity of South Africa’s judiciary. The court’s decision affirms our position and strengthens the fight to maintain the highest standards of integrity within our judiciary.
"An impeached judge, found guilty of gross misconduct, should not hold a position on the JSC, a body entrusted with the responsibility of selecting judges and upholding the highest standards of judicial integrity,” said the DA’s national spokesperson, Karabo Khakhau.
"This ruling is a major step in safeguarding the independence and credibility of our judicial system. Allowing Dr Hlophe, who was impeached after a long and contentious legal process, to influence the selection of future judges would have severely damaged public trust in our judiciary and compromised the principles that uphold our democracy,”she said. DM
This is a developing story and will be updated.