On Monday, 7 October 2024, uMkhonto weSizwe Party (MKP) Parliamentary leader, Dr John Hlophe, resigned from the Judicial Service Commission (JSC) following an interim court order that barred him from participating in the JSC interviews currently taking place in Johannesburg.
His resignation came as a surprise, especially after his party fought to keep him in the position. In what follows, the court’s handed-down decision is explored, shedding light on the legal reasoning behind Hlophe’s exclusion from the JSC proceedings
Background and legal context
Dr. Hlophe, leader of the opposition in the National Assembly and member of the Umkhonto Wesizwe Party, was designated to the JSC under Section 178(1)(h) of the Constitution which directs that of the 6 of persons designated by the National Assembly from among its members, at least three must be members of opposition parties represented in the Assembly.
The Democratic Alliance (DA) challenged his participation in the JSC, leading to a court ruling in September 2024 that prohibited him from taking part in JSC processes.
This full court ruling was interlocutory, meaning it was not final but remained in place unless set aside on appeal. The applicants (MKP), concerned that the JSC proceeding without resolving this legal uncertainty would infringe their constitutional rights, sought to block the JSC’s sitting on an urgent basis.
The decision to proceed
The High Court ruled that the JSC’s decision to proceed with its October sitting, despite the Full Court order, was rational. The JSC had convened an emergency meeting after the order and determined that while Hlophe could not participate, it could still continue its work in his absence. The JSC relied on Section 18(2) of the Superior Courts Act, which allows certain orders to proceed despite appeals.
Judge Stuart Wilson found that the JSC acted reasonably and within the bounds of the law. The JSC had taken into account the court’s decision and concluded that it was still properly constituted without Hlophe. This allowed the commission to proceed with the judicial appointment interviews without delay or disruption.
Implications of the decision
The court’s decision has broader implications for judicial governance and the separation of powers. It underscores that the JSC, as a constitutionally independent body, must carry out its work, even amid legal controversies concerning its members. The ruling reaffirms that interim court orders must be respected, and it ensures that the JSC can continue its function without unnecessary delays.
The case also raises questions about the fairness of restraining a political figure from participating in judicial appointments, particularly when the legal challenge is still unresolved. However, the judgment emphasises that the Full Court order is binding and must be followed, even as the broader case remains open.
The Court’s View on Rights Infringement
The applicants argued that the JSC’s decision to proceed infringed on their political rights, guaranteed under Section 19 of the Constitution. However, the High Court dismissed this argument, stating that any limitation on these rights arose from the Full Court’s order, not from the JSC’s actions.
Since the JSC acted rationally and in line with the law, the applicants’ constitutional rights were not unjustifiably infringed.
Ultimately, the court dismissed the application, allowing the JSC to proceed with its work. This judgment highlights the complexity of balancing political participation with judicial independence and serves as a reminder that courts must respect interim orders while ensuring that constitutional bodies continue their work.
Business as usual for the JSC
With the attempted interruption over the JSC interviews now behind them, the JSC has recommended Justice Mbulelo Mabindla-Boqwana to replace Hlophe as the new Judge President of the Western Cape High Court.
Mabindla-Boqwana was interviewed on Monday, 14 October 2024, alongside acting Judge President Patricia Goliath and Judge Daniel Thulare. Chief Justice Mandisa Maya questioned Mabindla-Boqwana on whether she would prioritise writing judgments in indigenous languages if appointed, underscoring the judiciary’s push towards inclusivity.
DA Welcomes the Decision
The DA has welcomed the Gauteng High Court’s decision to dismiss the MKP’s attempts to delay the JSC interviews, stating that the ruling ensures the process of selecting new judges can move forward without being obstructed by individuals like Hlophe, who have been found guilty of gross misconduct. The party believes the court’s decision upholds the integrity of the judiciary and safeguards against undue interference.
Upholding judicial independence
The court’s decision to uphold the interim order is a vindication of the strength of South Africa’s democracy and a clear victory for judicial independence. By reinforcing the importance of rational decision-making and upholding the court’s earlier ruling, the judiciary has maintained the integrity of South Africa’s legal system in this pivotal moment.
ARE YOU SURPRISED BY DR JOHN HLOPHE’S DECISION TO RESIGN FROM THE JSC?
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