Freedom Under Law statement on the designation of Dr MJ Hlophe as a member of the Judicial Service Commission  

10 July 2024 

Freedom Under Law (FUL) notes the National Assembly's decision to designate Dr MJ Hlophe as one of the representatives of the National Assembly on the Judicial Service Commission (JSC).

To have a situation where an individual who was found to have committed gross misconduct and was removed from judicial office, is now in a position to decide on the suitability of other candidates for judicial appointment is wholly inappropriate, irrational, and in our view, susceptible to legal challenge.

It is also hard to reconcile the contradictory position of political parties which voted for Dr Hlophe to be removed from judicial office but now voted in favour of his appointment to the JSC. This was an early test for all the parties forming the GNU to take  a position which would ultimately  strengthen the credibility of the JSC and the rule of law. All parties who did not object to the nomination today are, by their silence, implicated in this egregious decision. 

The designation of members of the National Assembly to the JSC is not equivalent to assigning members to portfolio committees within the assembly. The Constitution requires organs of state to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility, and effectiveness. By designating an individual who has been found unfit to be a judge to the body responsible for the selection of judges, the National Assembly has fallen short of this duty.   

FUL will be challenging Dr Hlophe's designation as a member of the JSC on rationality and rule of law grounds.

Issued by Freedom Under Law, 10 July 2024