Court rules impeached judge John Hlophe cannot serve on JSC

The Western Cape High Court has ruled that impeached former judge, Dr John Hlophe, cannot be part of the Judicial Service Commission (JSC), finding his appointment was unconstitutional.

In a ruling on Monday, the High Court found that the National Assembly (NA) had failed to properly exercise its discretion in approving his appointment - thereby undermining the integrity of the judiciary.

The court held that Parliament’s conduct effectively rubber-stamped Hlophe’s nomination, disregarding the serious implications for the JSC’s credibility and constitutional mandate.

The MK Party deputy president was nominated to serve on the Judicial Service Commission (JSC) last year but subsequently resigned.

“The judiciary is essential to the maintenance of constitutional democracy.

“It is declared that the National Assembly may not designate Dr. Mandlakayise John Hlophe to serve on the Judicial Services Commission in terms of section 178(1)(h) of the Constitution.

“Hlophe and MKP are ordered to pay the applicant's costs,” the order stated.

The JSC, a constitutionally established body, is tasked with recommending judicial appointments and holding judges accountable.

The court emphasised that this function is essential to upholding judicial independence - an obligation it said was compromised by Hlophe’s appointment.

The judgment followed legal action brought by Freedom Under Law, Corruption Watch, and the DA who argued that appointing an impeached judge to the JSC threatened the independence and legitimacy of South Africa’s judiciary.

In February 2024, Hlophe became the first judge in democratic South Africa to be impeached by Parliament, following a recommendation by the Judicial Service Commission.

The impeachment stemmed from a misconduct case dating back to 2008 when Hlophe was accused of attempting to improperly influence Constitutional Court Justices Bess Nkabinde and Chris Jafta in a matter involving then-President Jacob Zuma.

After more than a decade of legal proceedings, the JSC recommended his removal in 2021. Parliament only voted in favour of impeachment in 2024.

DA federal chairperson, Helen Zille, welcomed the court ruling.

"The High Court order to bar an impeached judge from serving on the Judicial Services Commission, is a victory for the rule of law, and the Constitution.

"The Judicial Services Commission must play its role as interviewing and disciplinary body for the judicial arm of Government through members who are themselves fit and proper and above reproach.

"The judgment of the High Court stresses that 'public confidence in the judiciary’s composition and administration of justice is vital' - a sentiment with which the DA firmly agrees," Zille said.

Cape Times