Dr John Hlophe challenges court ruling on JSC participation

Impeached former Western Cape judge president and MK Party caucus leader in Parliament, Dr John Hlophe, has vowed to appeal the Western Cape High Court, which barred him from representing his party in the Judicial Service Commission (JSC).

Reacting to the decision during the party’s media briefing on Tuesday, Hlophe in isiZulu, said “Ngeke sidlale amajaji la sizodlulisa isinqumo (We are going to appeal the decision).”

On Monday, the court set aside a decision by the National Assembly (NA) made in July last year to endorse the recommendation of the uMkhonto weSizwe (MK) Party to have him serve as one of its six parliamentarians.

The party had nominated Hlophe to serve on the JSC, which empowered him to participate in the appointment of judges.

The JSC was due to conduct interviews for the vacant positions of judges, however, the DA, Freedom Under Law, and Corruption Watch filed an urgent interdict to prevent Hlophe from sitting in the interviews. The court granted an interdict.

The matter was heard in February by a full bench of judges from outside the division, after the court previously granted an interdict in favour of the Democratic Alliance, Freedom Under Law, and Corruption Watch, preventing Hlophe from participating in the work of the commission pending this matter.

The court said the NA had fundamentally misunderstood the nature of its powers to designate members to serve on the body that interviews candidates to become judges.

It added that this seriously threatens the independence of the judiciary and his presence on the JSC would prejudice the commission’s ability to do its work. 

“Through the impeachment of Dr Hlophe, the National Assembly has effectively already determined that his continued involvement in judicial affairs would diminish public trust,” said the court.

It said that by Hlophe trying to appeal this judgment in the first part of this case, he has shown disregard for the authority and integrity of the courts. For this reason, it made an order that a judge removed for gross misconduct may never serve on the JSC. 

In 2021, the Judicial Conduct Tribunal (JCT) found that Hlophe’s conduct breached the provisions of Section 165 of the Constitution and his conduct threatened and interfered with the independence, impartiality of the Constitutional Court.

Acting on the recommendations of the JCT, the JSC found Hlophe guilty of attempting to influence two justices of the Constitutional Court to violate their oaths of office to rule in favour of former Jacob Zuma in his arms deal case in 2008. 

The matter was then referred to the Portfolio Committee on Justice and Correctional Services, which then recommended to the National Assembly to impeach Hlophe.

This was eventually approved by Parliament through a vote last year. This meant that Hlophe was stripped of his lifetime title as a judge as well as other perks including lifetime salary.

wilem.phungula@inl.co.za