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Impeached former judge president of the Western Cape High Court and member of Parliament for the Mkhonto weSizwe Party (MKP), Dr John Hlophe, will not be part of the Judicial Services Commission (JSC) after the same court ruled on 2 June 2025 that Parliament’s decision to designate him to the body was unconstitutional.
Three related applications were brought by Corruption Watch (CW), the Democratic Alliance, and Freedom Under Law in 2024, all of them opposing his inclusion in the JSC. In its application, heard in early September 2024, CW argued that the JSC performs an important role in the appointment of judges, and it was therefore critical that the designation process be taken seriously and that only suitably qualified persons should be appointed.
As Hlophe had been removed as a judge for gross misconduct earlier in the same year, his appointment – following nomination from his party – undermined the independence, dignity, and effectiveness of the courts. CW further sought to interdict Hlophe from taking part in the October process of interviewing judges, traditionally undertaken by the JSC, of which some members are parliamentarians. This interdiction was granted.
In their individual applications, the organisations all relied on the following grounds: “The National Assembly committed a material error of law: it failed to properly exercise its discretion under section 178 (1)(h) of the Constitution when it designated Dr Hlophe to serve on the JSC, acting on the mistaken belief that his position as an MP and his nomination but the MK Party compelled his designation. In fact, the NA did not realise that it had discretion at all.
“In designating Dr Hlophe to the JSC, the NA ignored and undermined the constitutional duty placed on it by section 165 (4) of the Constitution to protect the integrity and legitimacy of courts. Not only with the public’s respect for the judiciary be affected by Dr Hlophe’s appointment, but his designation also constitutes an attack on our constitutional democracy as a whole.”
The full bench concurred, making the following order in respect of all three applications: “The decision of the National Assembly taken on 9 July 2024 to designate the First Respondent as one of its representatives to the JSC is:
- Declared unconstitutional and invalid; and
- Reviewed and set aside.”
The bench further declared that the National Assembly may not designate Hlophe to serve on the JSC in terms of section 178(1)(h) of the Constitution.
Orders of cost in favour of all three applicants were made to both the MKP and Hlophe.
Challenge
The MKP responded to the ruling by declaring that it would appeal it. Party spokesperson Nhlamulo Ndlela said in a statement: “The MK Party is determined to expose the fundamental injustices embedded in the current Constitution and will therefore appeal this shocking judgment in an effort to educate the public about the urgent need for parliamentary sovereignty blended with Indigenous African Law based on Ubuntu, collective ownership of economic resources and the will of the people where the law can no longer be manipulated to justify hatred for certain targeted individuals.”
However, Judges Matter, the organisation that works towards transparency and accountability in the judiciary, said the chances of such an appeal succeeding are slim. Mbekezeli Benjamin, a research and advocacy officer at Judges Matter, said in a televised interview with SABC News that “they have every right to take this decision on appeal, that is what our judicial system allows and they should exercise that right.”
However, he added, the judgment is “quite clear on some of these aspects that that they are challenging. For example, on Parliament’s responsibility when it designates people to serve on bodies like the Judicial Service Commission – the court makes clear that the National Assembly has an elevated duty in terms of the Constitution to take very seriously that work of designating a member of the JSC, because the JSC is not just any other parliamentary committee.”
Rather, he added, it is a constitutional body that requires and is required by the Constitution to always uphold the integrity and independence of the judiciary.
Hlophe was one of only two judges to be impeached in democratic South Africa, in February last year, after a majority vote to that effect in the NA. The charges against him were gross misconduct relating to allegations that he tried to influence two Constitutional Court judges in case involving former president Jacob Zuma. The investigation into the allegations went on for 16 years.
Following the impeachment, Hlophe indicated an intention to apply to the Constitutional Court to reverse it. He joined the MKP and was announced in June last year as its leader in Parliament.
