The FW de Klerk Foundation Concerned Hlophe's Appointment to JSC Will Weaken Crucial Institution

9 July 2024

The FW de Klerk Foundation is concerned by the appointment of Dr John Hlophe, MP to serve on the Judicial Service Commission (“JSC”). The JSC is the body responsible for judicial appointments and disciplinary proceedings. Six Members of Parliament (“MPs”), amongst others, form part of it.

Dr Hlophe is a former High Court judge (and former judge president of the High Court’s Western Cape Divisions) who was found guilty of gross misconduct by the JSC, ultimately suspended by the President and later impeached by Parliament. (I.e. removed from his position as a judge.) “Appointing someone found guilty of misconduct that was so gross it led to them being removed as a judge, to the institution that found them guilty in the first place and is responsible for disciplinary proceedings against judges, raises serious questions about whether this crucial institution will be compromised,” says Daniela Ellerbeck, an attorney and the FW de Klerk Foundation’s Constitutional Programmes Manager.

“Although Dr Hlophe swore to uphold and respect the law and Constitution as an MP, his impeachment for previous conduct stands in stark contrast to this oath of office. Impeachment is a serious issue: The Constitution only allows for a judge to be removed if s/he is, for example, found guilty of gross misconduct by the JSC and at least two-thirds of the MPs call for him to be removed, i.e. an impeachment vote,” elaborates Ellerbeck. “Thus, being removed as a judge is no easy matter and only happens under extreme circumstances.”

Dr Hlophe is also a very controversial MP, because he was not on the uMkhonto weSizwe Party’s pre-election candidate list submitted to the Independent Electoral Commission. Constitutional law experts assert that, because Dr Hlophe was not on the list, his later inclusion and swearing-in as an MP is illegal and unconstitutional. “Appointing someone shrouded in controversy to an institution where ethical conduct and integrity should be the plumbline will only weaken that institution and wreck the public’s confidence in the courts,” states Ellerbeck.

Issued by FW de Klerk Foundation, 9 July 2024