AfriForum has approached the Constitutional Court, seeking to overturn John Hlophe’s appointment to the Judicial Service Commission (JSC) made four months after his impeachment, claiming it is unconstitutional and unlawful. The civil rights organization contends that the appointment of the new parliamentary leader of Jacob Zuma’s uMkhonto weSizwe (MK) party undermines the Constitution’s mandate in section 165, which requires the legislature to safeguard the independence, dignity, and impartiality of the courts, rather than interfere with their operations.
AfriForum argues that it is irrational for Parliament to appoint Hlophe to the JSC, given that he was previously found guilty of violating the duty to protect and assist the courts.
AfriForum’s CEO, Kallie Kriel, stated in the organization’s founding affidavit that it is inappropriate for Hlophe to assess prospective judges on ethics, integrity, and suitability for office when he himself was found guilty of gross misconduct by the very body he is about to join, as confirmed by the courts.
In 2021, the JSC upheld a finding by the Judicial Conduct Tribunal that Hlophe had committed gross misconduct by discussing a pending ruling related to former President Jacob Zuma’s arms deal corruption case with two Constitutional Court justices. The tribunal concluded that Hlophe appeared to be on a politically motivated mission to influence Justices Chris Jafta and Bess Nkabinde during separate meetings in the spring of 2008, a year before Zuma became president.
Fourteen years later, the National Assembly passed a resolution for President Cyril Ramaphosa to remove Hlophe from the bench. Hlophe has consistently denied any wrongdoing, repeatedly challenged the misconduct inquiry through legal means, and unsuccessfully sought a review of the findings.
The ANC did not oppose Hlophe’s nomination when selecting new parliamentary representatives for the commission two weeks ago, citing that no legal or parliamentary rules explicitly barred the appointment of an impeached judge.
Kriel argued, however, that Parliament failed in its constitutional duties by not establishing rules required under section 55 of the Constitution to oversee the JSC effectively. He asserted that this issue falls under the exclusive jurisdiction of the Constitutional Court, as no other court has the authority to determine whether Parliament has upheld its constitutional obligations.
Kriel requested direct access to the Constitutional Court, emphasizing that case law dictates that matters touching on the separation of powers should be addressed by the apex court. He noted that disputes requiring judicial review of parliamentary decisions are often for the Constitutional Court alone.
He referred to former Chief Justice Sandile Ngcobo’s explanation in the 2006 case Doctors for Life International v. Speaker of the National Assembly and Others, which highlighted that when Parliament has a duty but lacks specific instructions on how to execute it, the Constitutional Court is the appropriate venue for resolution. Kriel argued that Parliament’s reasoning for Hlophe’s appointment—claiming it could not prevent his service on the JSC until it had implemented specific rules—supports the need for the apex court’s intervention.
AfriForum argued that this position not only overlooks Parliament’s responsibilities but also shifts the task of defining these duties and guiding MPs to the court.
Kriel referred to case law, including some related to Hlophe’s disciplinary process, which underscores the constitutional significance of the JSC’s composition and conduct. He stated that the issue at hand is unprecedented in its importance.
He emphasized that the implications of appointing an impeached individual found unfit for judicial office to the JSC are so severe that it is in the public interest for the court to grant direct access, assume exclusive jurisdiction, and resolve the matter quickly.
AfriForum, like other legal observers, also raised concerns that candidates for judicial positions might demand Hlophe’s recusal during their interviews with the commission. This could cause delays in appointments or lead to legal challenges regarding the commission’s proceedings.
Kriel noted that while the legal community sees the case as ripe for review, courts are generally hesitant to intervene in legislative matters. He argued that a rationality inquiry does not violate the separation of powers since it involves assessing the basic validity of executive decisions.
Freedom Under Law has also indicated its intention to challenge the appointment.