By Lesedi Sibiya-Diplomatic Inside
uMkhonto weSizwe Party(MKP) Deputy President Dr Mandlakayise John Hlophe was deemed not fit to serve on the Judicial Service Commission (JSC) by the Western Cape High Court. This ruling was followed by objections from three bodies, The Democratic Alliance (DA), Freedom Under Law and Corruption Watch. The reason for this appeal from these bodies is because they feel that Dr John Hlophe’s appointment as a member of the JSC by the National Assembly is unconstitutional and directly undermines the credibility of the JSC.
Dr John Hlophe had resigned from his post in the JSC after he was appointed back in 2023, after he became the first judge in a democratic South Africa to face impeachment by parliament in February 2024. The reason the appointment had sparked controversy is due to a case of misconduct dating as far back as 2008 when he was accused of attempting to manipulate Constitutional Court Justices in a case that involved former President Jacob Zuma, a case in which Dr John Hlophe was found guilty. DA spokesperson Karabo Khakhau expressed in an interview with Newsroom Afrika that “It cannot be that a disgraced judge, an impeached judge who was found guilty of manipulating processes of the court, of trying to influence other judges unduly for political reasons, must serve on the Judicial Service Commission, particularly given the important role it plays in appointing other judges across the land. So, we are very happy that this is a win for democracy, this is a win for the people of South Africa. It is a win for independence of the courts.” Parliament spokesperson Moloto Mothapo also released a statement saying “Parliament notes the judgement handed down yesterday by the Western Cape division of the High Court regarding the review applications brought by the Democratic Alliance, Freedom under Law, and Corruption Watch”. Mothapo further added that “The court has ruled that the national assembly decision to designate Dr John Hlophe, MP, to serve as one of it’s representatives on the Judicial Service Commission(JSC), in terms of section 178 of the constitution was unconstitutional, invalid and therefore reviewed and set aside.”
The Judicial Service Commission is a constitutional body which was formed as per section 178 of the Constitution of South Africa as part of the Judicial Service Commission Act 9 which was established in 1994. Its primary function is to interview candidates for judicial positions and make recommendations for appointment to the bench. They also deal with complaints brought against judges, manage the register of judges’ registrable interests and advise the national government on matters that relate to the judiciary. As the JSC holds significant weight in the constitution of South Africa and also representative of the country’s democratic ethics, the appointment of someone who has a history of corruption especially when it comes to judiciary matters is hypocritical in the eyes of the Democratic Alliance and various parliament leaders, which even questions the ethics of the National Assembly whose function is to appoint people in high positions ,including the country’s presidency, presents a setback to the integrity of governing bodies and hurts the country’s constitution. Dr Hlophe has expressed his disdain over this ruling and intends on challenging it, as he expressed at a MKP press conference at the Coastlands Skye Hotel in Durban on Tuesday defiantly expressing: “Asizodlala amajaji la-we won’t be played by judges here.”
The Parliament Spokesperson has also stated that “Parliament will take all necessary steps to ensure alignment with courts findings…this includes instituting the appropriate processes to ensure that future designations comply with the constitutional principles outlined in the judgement.”