Freedom Under Law (FUL) has instituted litigation in the Western Cape High court to challenge the designation by the National Assembly of Dr MJ Hlophe as a member of the Judicial Service Commission (JSC).

On 9 July 2024, the National Assembly voted to designate Dr Hlophe as a member of the JSC, in terms of section 178(1)(h) of the Constitution. FUL, along with several other organisations, raised concerns about the prospect of someone who had been removed from judicial office serving as a member of the body constitutionally mandated to play a central role in the selection of judges, and as a member of the very body which had found that Dr Hlophe had committed gross misconduct, leading to his removal from judicial office.

FUL has applied to the Western Cape High Court to review and set aside the National Assembly’s designation of Dr Hlophe as a member of the JSC. The review is based on four main grounds:

That the National Assembly failed to exercise its discretion properly;
That the designation of Dr Hlophe is incompatible with the National Assembly’s obligations in terms of section 165(4) of the Constitution, which requires organs of state to assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts;
That the decision was unreasonable and irrational; and
That the National Assembly took into account irrelevant factors, and failed to take into account relevant factors, in making its decision.
The JSC plays a crucial gatekeeping function in respect of the judiciary by interviewing candidates for vacancies and making recommendations for their appointment. The JSC’s role in creating and maintaining a competent, impartial, independent, and accountable judiciary cannot be overemphasised. FUL believes that this litigation is essential to protect the independence of the judiciary, as well as the independence and impartiality of the JSC.

Notice of Motion, together with Founding affidavit and a further explanatory note. FUL expresses its grateful thanks to Nortons Inc, our pro bono attorneys in this matter.