Freedom Under Law welcomes the judgment of the full bench of the Western Cape High Court holding that the National Assembly’s decision to designate Dr John Hlophe as a member of the Judicial Service Commission (JSC) was unconstitutional and invalid, and setting it aside. The court further declared that Dr Hlophe may not be designated to serve on the JSC.  

FUL had challenged Dr Hlophe’s designation, along with The Democratic Alliance and Corruption Watch. An interim interdict was previously granted to the DA and Corruption Watch to prevent Dr Hlophe from taking up a position on the JSC at its October 2024 sitting. FUL had sought a final order, and its application was decided together with Part B of the DA and Corruption Watch’s application.

In its judgment, the court held that the National Assembly made a material error of law by designating Dr Hlophe as a member of the JSC without considering his suitability; that it acted irrationally by designating Dr Hlophe in spite of the constitutional requirement to assist and protect the courts; and that it failed to take into account the relevant consideration of Dr Hlophe’s removal from judicial office for gross misconduct, whilst taking irrelevant considerations into account.

The judgment establishes the important principle that the National Assembly is under a duty to ensure that the members of parliament it designates to serve on the JSC are suitable to do so. It may not merely rubber-stamp the nominations of political parties.  

FUL regards the decision as an important vindication of the independence and integrity of the judiciary, and a crucial affirmation of the importance of the JSC. FUL has consistently taken the view that it was manifestly inappropriate for Dr Hlophe to serve as a member of the JSC, considering that he was removed from judicial office for gross misconduct, and considering his and the MK party’s subsequent public statements attacking the integrity of the judiciary. The court’s decision has borne out this view.

The judgment is also significant in that the court awarded punitive costs against the MK Party and Dr Hlophe for a series of statements which the court found to constitute an ongoing effort to undermine the judiciary. This is an important measure to protect the judiciary from inappropriate and unjustified attempts to undermine it.    

ENDS