Freedom Under Law notes decision to interdict Dr Hlophe from participating in the Judicial Service Commission

27 September 2024 

Freedom Under Law notes the decision of the Western Cape High Court to interdict Dr John Hlophe from participating in the activities of the Judicial Service Commission (JSC), pending a final decision on challenges to the designation of Dr Hlophe as one of the representatives of the National Assembly (NA) on the JSC.

The interdict was granted following applications by the Democratic Alliance (DA) and Corruption Watch (CW), in which interim and then final relief was sought.  FUL brought a separate application seeking a final order to set aside the NA’s designation of Dr Hlophe as a member of the JSC. 

The principal arguments advanced by the parties were that the NA had failed to exercise its discretion properly; that the designation of Dr Hlophe was incompatible with the NA’s constitutional obligation to ensure the independence, impartiality and dignity of the courts; that the NA had failed to take relevant factors into account and took irrelevant factors into account; and that the decision was irrational and unreasonable.    

The court postponed FUL’s application until it hears the DA's and CW's application for final relief, or the Constitutional Court entertains a similar application by AfriForum and other interested parties, including FUL. The court nevertheless considered FUL's submissions in its decision to grant the interdict. The court found that the designation of Dr Hlophe was indeed incompatible with the NA’s constitutional obligations. It found that a very strong prima facie case had been made out, and that it was one of the clearest cases for the granting of an interim interdict.             

FUL welcomes the court’s decision to interdict Dr Hlophe from participating in the JSC’s activities, which will ensure that he does not participate in the JSC’s forthcoming sitting in October 2024. 

FUL brought its application to protect the independence and integrity of the judiciary, and the independence and impartiality of the JSC. Dr Hlophe was removed from judicial office for gross misconduct. We reiterate that it would be completely inappropriate and unlawful for Dr Hlophe to serve on the JSC, which plays a central role in the appointment of judges. 

FUL looks forward to its application being decided in due course.

Issued by FUL, 27 September 2024