Speaker clarifies position on legal challenges to Dr. Hlophe’s JSC designation

20 August 2024

The Speaker of the National Assembly, Ms Thoko Didiza, on 19 August 2024 submitted her explanatory affidavit in the High Court regarding the applications challenging the National Assembly’s decision to designate Dr Mandlakayise John Hlophe as one of its six representatives to the Judicial Service Commission (JSC) under Section 178(1)(h) of the Constitution. The applications before the Court have been brought by multiple organizations, including the Democratic Alliance, Corruption Watch, Freedom Under Law, and Afriforum, raising concerns about Dr Hlophe’s designation.

On 9 July 2024, the National Assembly passed a motion designating Dr Hlophe to the JSC following standard parliamentary rules and processes. The designation has been widely debated due to the unique circumstances surrounding Dr Hlophe, who was previously removed from office as a judge under Section 177 of the Constitution following a finding of gross misconduct. His subsequent election to Parliament and designation to the JSC by the uMkhonto weSizwe (MK) Party has sparked legal challenges questioning the propriety and legality of his appointment.

In her affidavit, the Speaker emphasizes her neutral stance in the matter, abiding by the Court’s decision and not getting involved in arguments that political parties are best placed to put forward if they so wish. The review applications do not challenge a decision taken by the Speaker. The Speaker’s role is limited to ensuring that the procedures followed in Parliament are in line with the Constitution and parliamentary rules. The designation of members to the JSC is primarily a political decision made by Parliament and reflects the majority view expressed during the vote.
 
The Speaker also highlighted that neither the Constitution nor the rules of Parliament automatically disqualify Dr Hlophe from being designated to the JSC based on his past removal as a judge. This point underscores that the decision ultimately rests on political processes within Parliament, which are not within the Speaker’s purview to challenge or endorse.
 
The Speaker has reiterated that all actions taken in Parliament, including the designation of Dr Hlophe, were conducted in accordance with the established rules and procedures. She further noted that there is no rule or constitutional provision explicitly barring a member of Parliament, including Dr Hlophe, from being nominated to serve on the JSC.
 
Given the complexity and the potential implications for parliamentary processes and the judiciary, the Speaker expressed confidence that the Court’s judgment will provide clarity on this unprecedented set of facts. 
 
The Speaker has fulfilled her duties as prescribed, ensuring that all relevant information is placed before the Court to enable a fair and equitable resolution. The matter now rests in the hands of the judiciary, and the Speaker remains committed to upholding the principles of transparency, accountability, and respect for the rule of law.

Issued by Moloto Mothapo, Media Officer, Parliament, 20 August 2024