Court finds impeached judge John Hlophe unfit to serve on JSC

Former Judge President and MK party Member of Parliament (MP) John Hlophe has been dealt a blow after the Western Cape High Court ruled that Parliament’s decision to appoint the impeached judge to the Judicial Service Commission (JSC) was unconstitutional.

The ruling follows legal challenges brought by Freedom Under Law, Corruption Watch, and the DA, who argued that appointing an impeached judge to the JSC threatened judicial independence.

The challenge against the impeached former judge succeeded with costs.

Judgement

The Western Cape High Court found Parliament violated the constitution by designating Hlophe to take up a seat on the Commission because as a previously impeached judge who breached his judicial oath, was found to be unfit to continue serving as a judge which undermines the integrity and compromises the legitimacy of any JSC process he may be involved in to appoint further judges.

The court found that the Judiciary is “essential to the maintenance of constitutional democracy.”

“The judicial branch is responsible not only for resolving disputes between private parties, but also for resolving disputes between government and private parties and even disputes between different branches or sectors of government. ​ It has the responsibility to protect individuals from government overreaching, and it plays an important role in our country’s constitutional balance of powers.” ​

‘Compromising Judiciary’

The court said this emphasises the judiciary’s critical role in maintaining the balance of power within South Africa’s constitutional democracy by ensuring accountability and protecting individual rights. ​

“The National Assembly (NA) failed to properly exercise its discretion, thereby compromising the integrity of the judiciary. Appointing an impeached judge to the JSC undermines the very body entrusted with upholding judicial integrity and accountability”.

The court also found the NA “mistakenly believed it had no discretion under section 178 (1) (h) of the Constitution and merely rubber-stamped the nomination by the MK party.

“This failure to exercise discretion was based on a material error of law.

“The National Assembly did not consider the relevant fact that Dr. Hlophe had been impeached for gross misconduct. ​ Instead, it relied on irrelevant considerations, such as established parliamentary practices and conventions, which cannot override constitutional requirements,” the judgement read.

The court declared the NA’s decision unconstitutional and invalid, reviewed and set it aside.

ALSO READ: MK Party calls decision to bar John Hlophe from JSC a ‘lynching’

Costs

The court declared that the National Assembly may not designate Hlophe to serve on the JSC in terms of Section 17(1)(h) of the Constitution.

“Dr Mandiakayise John Hlophe and the Umkhonto Wesiwe Party are ordered to pay the applicants’ costs, including the costs reserved in Part A, on an attorney and client scale, including the costs of two counsel on Scale C”.

DA “victory”

In December 2024, the same court dismissed John Hlophe’s leave to appeal an interim order preventing him from being a member of the JSC.

DA federal chair Helen Zille said the Western Cape High Court order to bar an impeached judge from serving on the JSC is a “victory for the rule of law, and the constitution.”

“The Judicial Services Commission must play its role as an 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.

ALSO READ: Hlophe’s JSC gig halted after court ruling

Impeachment

Hlophe, who became the first judge in the country’s history to be impeached, was elected in July 2024 to serve on the JSC, a body that appoints judges and regulates their ethical and professional conduct in South Africa.

In April 2021, the Judicial Conduct Tribunal found Hlophe guilty of gross misconduct. The decision was confirmed by the JSC, which recommended that parliament impeach him. He was impeached in February after a vote in parliament.

Hlophe’s conviction resulted from his attempts to unlawfully influence two judges of the Constitutional Court, Bess Nkabinde and Chris Jafta, to rule in favour of Jacob Zuma in cases before them in 2008.

NOW READ: AfriForum makes progress in a case to get Hlophe kicked off JSC