REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 16170/24
(1) REPORTABLE : YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED : YES
2 June 2025
DATE
In the matter between:
DEMOCRATIC ALLIANCE
and
MANDLAKAYISE JOHN HLOPHE
SPEAKER OF THE NATIONAL ASSEMBLY
JUDICIAL SERVICE COMMISSION
UMKHONTO WESIZWE
ALL OTHER PARTIES REPRESENTED IN THE
NATIONAL ASSEMBLY Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
and in the matter between:
FREEDOM UNDER LAW (RF) NPC
and
THE SPEAKER OF THE NATIONAL ASSEMBLY
THE JUDICIAL SERVICE COMMISSION
MANDLAKAYISE JOHN HLOPHE
ALL OTHER PARTIES REPRESENTED IN THE
NATIONAL ASSEMBLY
and in the matter between:
CORRUPTION WATCH NPC
and
THE SPEAKER OF THE NATIONAL ASSEMBLY
THE JUDICIAL SERVICE COMMISSION
MANDLAKA VISE JOHN HLOPHE
ALL OTHER PARTIES REPRESENTED IN THE
NATIONAL ASSEMBLY Case No. 16463/2024
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Case No: 16771/2024
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Judgment handed down electronically by circulation to the parties' legal representatives via email, and
released to SAFLII and by uploading it on Caselines. The date and time for hand down is deemed to
be 10:00 on 2 June 2025.
2
Constitution -section 178(1 )(h) -distinction between nomination and designation -National Assembly
has discretionary powers to designate representatives -an impeached judge who continues to
undermine the judiciary is not a fit and proper candidate to serve on the Judicial Services Commission.
JUDGME NT
Mbhele AJP, Sasson and Mudau JJ: (THE COURT)
The Constitutional Court in Helen Suzman Foundation v Judicial Service Commission1
stated -
"[32] The importance of the judiciary in our constitutional democratic project cannot be
overemphasised:
Introduction 'The judiciary is essential to the maintenance of constitutional democracy . By
exercising judicial control over governmenta l power and keeping it within its
constitutional bounds, the judiciary is able to hold the legislature and executive to
account in the courts and thus secure the rule of law and the protection of human
rights. 'Q
[1] On 21 February 2024, Dr Mandlakayise John Hlophe ("Dr Hlophe")3 became the first
judge in democratic South Africa to be removed from office by the National Assembly ("NA")
for gross misconduct in that he attempted to interfere with the administration of justice by
attempting to influence two Constitutional Court judges (Justice Nkabinde and Acting Justice
Jafta) to decide a pending matter in favour of former President Jacob Zuma, thereby violating
1 [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR 763 (CC) ("Helen Suzman Foundation").
2 Hoexter and Olivier The Judiciary in South Africa (Juta & Co Ltd, Cape Town 2014) at xxvii. As former
Chief Justice Ngcobo has remarked , the role played by the judiciary is of far-reaching importance: "The judicial
branch is responsib le not only for resolving disputes between private parties, but also for resolving disputes
between government and private parties and even disputes between different branches or sectors of
government. It has the responsibility to protect individuals from government overreaching, and it plays an
important role in our country's constitutiona l balance of powers." (Ngcobo "Sustaining Public Confidence in the
Judiciary: An Essential Condition for Realising the Judicial Role" (2011) 128 SALJ 5 at 9).
3 Dr Hlophe was appointed a judge in the Cape Provincial Division in 1995 and elevated to Judge President of
the Division in 2000.
3
their oaths of office. This was also the first time in our constitutional history that the NA was
called upon to exercise its powers under 177(1 )(b) of the Constitution of the Republic of South
Africa.4
[2] The events culminating in the removal of Dr Hlophe are a matter of public record and
need not be recounted in detail. It suffices to briefly outline certain background facts relevant
to the matter before this Court.5
[3] The Judicial Services Commission ("JSC") referred a complaint lodged by all the
Justices of the Constitutional Court, led by Chief Justice Langa and Deputy Chief Justice
Moseneke, to its Judicial Conduct Tribunal ("JTC").6
[4] Upon consideration, the JTC7 concluded in its Tribunal Decision that Dr Hlophe was
guilty of gross misconduct , finding that his conduct breached section 165 of the Constitution
in that Dr Hlophe had, "improperly attempted to influence the two Justices of the Constitutional
Court to violate their oaths of office". It further concluded that Dr Hlophe's conduct "seriously
threatened and interfered with the independence , impartiality, dignity and effectiveness of the
Constitutional Court", and "threatened public confidence in the judicial system."8
[5] Pursuant to section 20 of the Judicial Service Commission Act,9 the JSC considered
the JCT's report and conclusions. By a majority vote, the JSC concurred with the Tribunal's
findings and concluded that Dr Hlophe's conduct constituted gross misconduct as
contemplated in section 177(1 )(a) of the Constitution. The JSC further found that Dr Hlophe's
conduct amounted to an attempt to defeat or obstruct the administration of justice, which
seriously interfered with the judiciary's constitutionally protected independence.
[6] On 21 February 2024, the NA resolved, by an overwhelming majority, to remove Dr
Hlophe from judicial office for gross misconduct.
4 Act 108 of 1996 {"the Constitution ").
s We have drawn extensively from heads of argument prepared by counsel for the respective parties, for
which we express appreciation particularly on costs.
s Since 2008, when the complaint was made to the JSC, the process has been marred by litigation. We do not
intend to refer to that process in detail, as it is a matter of public record.
7 Tribunal Decision dated 9 April 2021.
s Tribunal Decision at para 123. Dr Hlophe's application to review and set aside the finding of the JSC that he was
guilty of gross misconduct was dismissed by a Full Bench of the High Court in Hlophe v Judicial Service Commission
and Others [2022] ZAGPJHC 276; (2022] 3 All SA 87 (GJ).
9 Act 9 of 1994.
4
[7] Finally, on 1 March 2024, after a 16-year protracted legal process costing the taxpayer
approximately R10 million, the President of the Republic removed Dr Hlophe from office in
terms of section 177 of the Constitution.
[8] Dr Hlophe then joined the Umkhonto Wesiswe Party ("MK"), which is the official
opposition , as the DA entered the Government of National Unity. The Democratic Alliance
("DA") says it reserves the right to challenge the process by which Dr Hlophe was made an
MP in a separate process, but, for purposes of this matter, the DA accepts that Dr Hlophe
was lawfully elected to the NA.
[9] On 9 July 2024, the NA designated six Members of Parliament ("MPs"), which
included Dr Hlophe, to serve on the JSC in terms of section 178(1 )(h) of the Constitution. It
is this designation that forms the basis for the current dispute. We shall return to a more
detailed analysis of the interpretation of this section.
The parties
[1 O] There are four10 applications challenging the lawfulness of the designation of Dr
Hlophe, three of which are before this Court -
(a) Democratic Alliance v Hlophe and Others ("the DA application") .
(b) Freedom Under Law (RF) NP v Speaker and Others (the "FUL
application").
(c) Corruption Watch v Speaker of the National Assembly and Others ("the
Corruption Watch application").
The applicants
[11] The DA is the applicant in case no. 16170/2024 and is a registered political party
holding 87 seats in the NA. The applicant in case no. 16771/2024 is Corruption Watch NPC
("Corruption Watch"}, a non-profit company incorporated in accordance with the laws of the
Republic of South Africa. The applicant in case no. 16463/2024 is Freedom Under Law NPC
10 The fourth application, Afriforum v Speaker and Others ("the Afriforum application"), is not before us.
5
("FUL"), a non-profit company incorporated and registered in terms of section 21 of the
Companies Act.11
[12] Dr Hlophe and MK complained that Corruption Watch acted inappropriately in
instituting a separate application , alleging that this constituted an unsustainable abuse of
process. Corruption Watch disputes this allegation , asserting that it maintains no political or
business alignment , and that joining forces with the DA as a co-applicant would have been
inconsistent with its mandate and purpose. We agree. First, Corruption Watch advances
additional grounds of review that the DA does not pursue. Second, it would not have been
appropriate for Corruption Watch to intervene in the proceedings brought by FUL, given that
Corruption Watch sought interim relief pending the outcome of the present review (Part B),
whereas FUL sought final relief from the outset. Third, none of the opposing respondents
has demonstrated any prejudice or inconvenience to the Court arising from Corruption
Watch's decision to proceed by way of a separate application.
The Respondents
[13] Although their citations differ in the different applications , the following respondents
are cited in all three applications: (i) Dr Mandlakayise John Hlophe ("Dr Hlophe"), a former
Judge of the High Court and the former Judge President of this Division who is currently a
member of the political party Umkhonto Wesizwe ("MK"). (ii) The Speaker of the National
Assembly ("the Speaker") , cited in her official capacity as the representative of the NA. In
each of the three matters before us, the Speaker filed an explanatory affidavit outlining the
basis of her non-opposition and made written and oral submissions before this Court. The
Speaker has adopted a neutral stance and indicated that she abides by the decision of this
Court and submitted that no order should therefore be made against the NA. (iii) The Judicial
Services Commission ("JSC"). No relief is sought against the JSC -it is cited solely for any
interest it may have in the matter. The JSC also filed a notice to abide. (iv) Umkhonto
Wesizwe ("MK"), a political party represented in the NA, is cited on the basis that it nominated
Dr Hlophe to be designated to serve on the JSC. (v) The remaining respondents are the 16
political parties represented in the NA cited for any interest they may have in these
11Act61 of 1973.
6
proceedings. No relief is sought against those political parties. Only Dr Hlophe and the MK
party oppose this application.
Litigation history
Full Court: Part A
[14] On 27 September 2024, three urgent, unconsolidated applications were brought by
the DA (case no: 16170/24), Corruption Watch (case no: 16771/2024), and FUL (case no:
16463/24) , challenging the NA's decision to designate Dr Hlophe as one of its six
representatives on the JSC in terms of section 178(1 )(h) of the Constitution. They were heard
simultaneously by a Full Court (Baqwa, Daffue, and Collis JJ).
[15] The DA and Corruption Watch sought interim relief under Part A of their applications ,
interdicting Dr Hlophe from participating as a member of the JSC pending the outcome of
Part B (the present proceedings). FUL sought final relief through judicial review, seeking an
order: first, declaring the NA's decision unconstitutional and invalid; and second, reviewing
and setting aside the decision and remitting the matter to the NA for reconsideration. The
relief sought by the DA and Corruption Watch is broader in scope than that sought by FUL.
[16] The Full Court granted the interim interdicts sought by the DA and Corruption Watch
and postponed FUL's application.12 In its order, the Court directed that FUL's application be
heard simultaneously with Part B of the DA and Corruption Watch applications.
Preliminary issues
Locus Standi (OA, FUL and Corruption Watch)
[17] Dr Hlophe and MK took issue with the applicants' standing to bring these applications.
Specifically, they claim that Corruption Watch does not have standing to bring this review and
they repeat its challenge to FUL's standing as it did in Part A. MK also claims that the various
applications were nothing more than an abuse of process, in that the applicants have
instituted the present proceedings without legitimate intentions.
12 The Full Court's judgment has been reported as Democratic Alliance v Hlophe and Others; Corruption Watch
v Hlophe and Others; Freedom Under Law v Hlophe and Others [2024) ZAWCHC 282;2025 (1) SA 169 (WCC)
(Democratic Alliance v Hlophe).
7
[18] The DA disputes these allegations and submits that the DA is committed to the rule of
law and to upholding of South Africa's democratic Constitution . The DA brings this application
in its own interest, its members' interests, and the public interest. In Democratic Alliance v
The Acting National Director of Public Prosecutions , 13 the SCA held that, because political
parties represent the public, they are obliged to ensure that institutions such as the National
Prosecuting Authority (and, by implication, the NA) act in accordance with constitutional and
legal prescripts , and to engage in litigation where there is a failure to do so.
[19] Corruption Watch referred to its Memorandum of Incorporation and submitted that its
mandate is to combat corruption and promote transparency , integrity, and accountability
within the private and public sectors. Similar to the DA, Corruption Watch instituted this
application in its own interest in terms of section 38(a) of the Constitution. In addition, the
application was brought in the public interest, as contemplated in section 38(d) of the
Constitution , given the undeniable public interest in the composition and functioning of the
JSC.14
[20] FUL explains that it brought this application in its own interest and in the public interest.
FUL points out that its purpose is, amongst others, to promote democracy under the law,
advance the understanding and respect for the rule of law and the principle of legality, and
secure and strengthen the independence of the judiciary. As part of this mandate, it monitors
the judiciary and the courts as the primary promoters and protectors of the rule of law within
South Africa's constitutional democracy. In Hlophe v Freedom Under Law in re: Freedom
Under Law v Hlophe; Moseneke and Others v Hlophe in re: Hlophe v Judicial Services
Commission and Others, 15 the Full Court held that Dr Hlophe's objections to FUL's standing
were "meritless" , "misconceived" and "in the face of common sense".
13 [2012) ZASCA 15; 2012 (3) SA 486 (SCA); 2012 (6) BCLR 613 (SCA): "(44] All political parties participating
in parliament must necessarily have an interest in ensuring that public power is exercised in accordance
with constitutional and legal prescripts and that the rule of law is upheld. They represent constituents that
collectively make up the electorate . They effectively represent the public in parliament. It is in the public
interest and of direct concern to political parties participating in parliament that an institution such as the
National Prosecuting Authority (NPA) act in accordance with constitutional and legal prescripts . It can
hardly be argued that citizenry in general would be concerned to ensure that there was no favouritism in
decisions relating to prosecutions . Few members of political parties or members of the public have the
ability, resources or inclination to bring a review application of the kind under discussion ."
14 We address the public's interest in the functions of the JSC in greater detail below.
1s [2021] ZAGPJHC 743; 2022 (2) SA 523 (GJ}, (2022) 1 All SA 721 (GJ) at para (46].
8
[21] By necessary implication, these findings extend to the objections raised by Dr Hlophe
and the MK Party against the DA and Corruption Watch in the present matters.
[22] The common-law requirements for legal standing have been substantially broadened
by section 38 of the Constitution. Section 38 of the Constitution of South Africa gives people
the right to take legal action if they believe their rights in the Bill of Rights have been violated.
In Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others, 16 O'Regan J described the courts' new role in a constitutional democracy as follows:
"[t]his role requires that access to the courts in constitutional matters should not be
precluded by rules of standing developed in a different constitutional environment in
which a different model of adjudication predominated. In particular , it is important that
it is not only those with vested interests who should be afforded standing in
constitutional challenges , where remedies may have a wide impact."17
[23] In concluding that the applicants have legal standing to bring these applications, we
have also taken note of the view of the Constitutional Court in A/butt v Centre for the Study
of Violence and Reconciliation and Others, 18 wherein it was confirmed that a much broader
approach to legal standing is taken, particularly when it comes to the violation of rights in the
Bill of Rights. We are therefore satisfied that the applicants have demonstrated that the
interests of justice and considerations of public interest justify this Court's scrutiny of the
impugned decision. Furthermore, considerations of expediency require that the matter be
heard and determined by this Court without delay. In the premises , all three applicants have
the requisite standing to bring these applications , both in their individual capacity and in the
public interest.
16 [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 1 BCLR 1 (CC).
11 Id at para [230].
1s [201 O] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC): "[33] The concession that the NGOs have
standing was properly made. Our Constitution adopts a broad approach to standing, in particular, when
it comes to the violation of rights in the Bill of Rights. This is apparent from the standing accorded to
persons who act in the public interest This ground is much broader than the other grounds of standing
contained in s 38. The NGOs have standing on at least two grounds.
[34] First, they are litigating in the public interest under s 38(d) of the Constitution . The NGOs contend
that the exclusion of victims from participation in the special dispensation process violates the
Constitution , in particular , the rule of law. They submit that, as civic organisations concerned with victims
of political violence, they have an interest in ensuring compliance with the Constitution and the rule of law.
Second, they are litigating in the interest of the victims under s 38(c). The victims whose interests the
NGOs represent were unable to seek relief themselves because they were unaware that applications for
pardons affecting them were being considered. The process followed by the President made no provision
for the victims to be made aware of the applications for pardons, nor to be given the opportunity to make
representa tions."
9
Is the dispute still alive?
[24] On 6 October 2024, Dr Hlophe resigned from the JSC, raising the question whether
the issues before this Court are still alive.
[25] According to FUL, the issues now before court in the review application remain alive
notwithstanding Dr Hlophe's resignation. FUL submits that the NA has followed an incorrect
and unlawful practice which fettered the discretion afforded to the NA when it designated Dr
Hlophe without exercising a discretion regarding his suitability to serve as a member of the
JSC.
[26] The Speaker agrees that the matter remains alive and relevant, notwithstandi ng Dr
Hlophe's resignation. She points out that the NA has not yet designated an alternate to
replace Dr Hlophe and that the NA is still responsible for designating an additional member
to the JSC from among the ranks of opposition parties. She also accepts that any future
debate regarding the suitability of a nominee must be guided by a proper interpretatio n of
section 178(1 )(h) of the Constitution . She accordingly welcomes judicial clarity on the
meaning and scope of this provision, particularly as it pertains to the requirement of
"suitability " of MP's designated under it. She also emphasises that such clarity is crucial,
given the likelihood of further litigation arising from the NA's future designation of Dr Hlophe,
which the MK Party has already indicated it intends to do. Dr Hlophe also agrees that his
resignation does not have any bearing on the issues raised in Part B and that the issues
remain alive for adjudication.
[27] We are satisfied that the matter is not moot. The fact that Dr Hlophe is no longer a
member of the JSC means, as pointed out by the Speaker, that a further designation will
need to occur in the future. Any future designation process by the NA must take place with
this Court's guidance on whether the NA had a discretion to consider the fitness of a nominee
for designation in terms of section 178(1 )(h) of the Constitution and whether it had acted
lawfully or unlawfully when it designated Dr Hlophe for appointment to the JSC without
exercising such discretion. Without such guidance , the NA risks repeating an unconstitutional
process that not only undermines the integrity of the JSC but ultimately the legitimacy of the
judiciary itself.
The dispute
10
[28] The matter before us concerns two narrow questions:
(a) Firstly, whether NA properly exercised its right and duty to consider whether
Dr Hlophe was suitable for designation to the JSC.
(b) Secondly, is Dr Hlophe, who had just recently been removed from the judicial
office for gross misconduct and continues to denigrate and denounce the
judicial system, suitable to be appointed to the JSC.
[29) This matter does not concern whether a person removed as a judge may sit as an MP,
nor whether an impeached judge could never serve on the JSC in any circumstances. It
focuses on the peculiar facts surrounding Dr Hlophe's designation as a member of the JSC.
[30] The applicants submit that the NA's decision to designate amounts to administrat ive
action under the Promotion of Administrative Justice Act (PAJA).19 Although the relief sought
by the parties differs, they all rely on the following grounds of review:
(a) The NA committed a material error of law: It failed to properly exercise its
discretion under section 178(1 )(h) of the Constitution when it designated Dr
Hlophe to serve on the JSC, acting on the mistaken belief that his position
as an MP and his nomination by the MK Party compelled his designation. In
fact, the NA did not realise that it had discretion at all.
(b) In designating Dr Hlophe to the JSC, the NA ignored and undermined the
constitutional duty placed on it by section 165(4) of the Constitution to protect
the integrity and legitimacy of courts. Not only will the public's respect for the
judiciary be affected by Dr Hlophe's appointment , but his designation also
constitutes an attack on our constitutional democracy as a whole.
(c) The NA considered various irrelevant considerations and failed to consider
relevant and material factors in reaching its decision. In particular , it
proceeded on the erroneous assumption that all MPs are inherently suitable
and eligible for designation to the JSC, and that the Constitution imposes no
specific criteria applicable to a nominee regarding their fitness to serve on
19 Act 3 of 2000 ("PAJA").
11
the JSC.
(d) The decision to designate Dr Hlophe -a judge recently impeached for gross
misconduct -is unreasonable and irrational. The purpose of the JSC is to
foster public confidence and respect for the judiciary and the rule of law.
Designating an impeached judge who has demonstrated a complete
disregard for the judiciary's integrity, to participate in appointing judges
undermines this purpose. We return to a more detailed consideration of each
of these grounds.
The orders sought
[31] Amplified by the joint minute, the DA seeks two orders: In its amended notice of
motion, the DA seeks a review of the decision by the NA to designate Dr Hlophe as one of
its representatives to the JSC. The DA further seeks a declaration that the NA may not
designate Dr Hlophe to serve on the JSC. The DA further seeks a punitive costs award
against Dr Hlophe and MK considering the unjustifiable and scandalous attacks on the DA
and this Court.20 In its application , FUL seeks a review of the NA's decision to designate Dr.
Hlophe as one of its representatives for the JSC. FUL also seeks a declaration that the NA
may not designate Dr. Hlophe to serve on the JSC and an order remitting the matter back to
the NA for reconsideration. Similarly, Corruption Watch seeks a review of the decision by the
NA to designate Dr. Hlophe as one of its representatives to the JSC. Like the DA and FUL,
Corruption Watch seeks a declaration that the NA may not in the future designate Dr. Hlophe
to serve on the JSC.
[32] On 10 December 2024, Corruption Watch filed a Notice of Application (to the extent
necessary) that its non-compliance with rule 28 of the Uniform Rules of Court is condoned
and that it be granted leave to amend Part B of its Notice of Motion. The supplementary relief
now sought by Corruption Watch is for a declarator that the NA cannot designate Dr Hlophe
to sit on the JSC.21
[33] Dr Hlophe does not object to the admission of Corruption Watch's supplementary
20 They have accused the DA of pursuing the litigation only because it is racist and described it as a "lynching ".
They have accused this Court of being "incompetent, politically driven and compromised ".
21 We address this issue in greater detail below.
12
affidavit and does not oppose the introduction of additional relief being sought. He does,
however, oppose the grant of the relief itself.
[34] MK claims that it is prejudiced by the supplementary affidavit and amended relief.
However, its contention that Corruption Watch failed to seek condonation for non-compliance
with rule 28 is incorrect. We are not persuaded that MK has suffered any prejudice. The
allegations contained in Corruption Watch's founding affidavit have been available to MK
since 30 July 2024, and an adequate opportunity has been provided to address both the
supplementary affidavit and the amended relief now sought. Accordingly, the Notice of
Application dated 10 December 2024 is granted.
Designation of Dr Hlophe to the JSC in terms of section 178(1 )(h) of the Constitution
[35] The Speaker explains how the process of designation unfolded. In 2024, in exercising
its powers in terms of section 178 of the Constitution, the NA determined which parties were
entitled to representation on the JSC. It determined that the ANC was entitled to two
representatives on the JSC, the DA one, MK one, the EFF and ActionSA also with one
representative each. Once political parties have submitted their nominations , the NA will then
proceed to the process of designation in terms of section 178(1 )(h) of the Constitution .
Section 178(1 )(h) of the Constitution is located in Chapter 8 of the Constitution and deals
with "Courts and Administration of Justice". It reads as follows:
"There is a Judicial Service Commission consisting of -
(h) Six persons designated by the National Assembly from among its members, at least
three of whom must be members of opposition parties represented in the Assembly".
[36] A clear distinction must therefore be drawn between the nomination and designation
processes . The former is a purely political process, whereas the latter is a process whereby
the NA exercises public power conferred on it in section 178(1 )(h) of the Constitution to
designate for appointment to the JSC. In doing so, the NA must act reasonably and rationally.
Whereas no party takes issue with the principle that Dr Hlophe was not barred from
nomination and that no specific criteria are set for an MP to be nominated by a political party,
we disagree with the Speaker's contention that no specific "fit and proper" criteria apply to a
designee.
13
Designation process
[37] The Speaker explains that the designation of nominees to serve on the JSC is
conducted in accordance with the Rules of the National Assembly. The General Rules govern
motions placed before the NA for a decision.22 A motion passes by way of majority support
by the political party, as is standard practice in a democratic Parliament. She explains that
nominations of MPs by their respective political parties are usually an uncontested and
uneventful process, and, until these court proceedings , a motion of designation in terms of
section 178(1 )(h) of the Constitution has never been challenged.
DA Objection
[38] When Dr Hlophe was nominated , the NA, for the first time, received objections, both
internally and externally. The DA,23 objected thereto as follows:
"The JSC plays a central role in the appointment of judges. Bearing in mind the
extensive powers vested in the judiciary under the Constitution , it is no exaggeration to
say that the work of the JSC is therefore crucial to the rule of law and constitutional
democracy in South Africa.
It is in the context of the importance of the work of the JSC, and well documented
failures in how it has performed its role, that we raise concern about the prospective
designation of Dr Hlophe.
It is well known that Dr Hlophe was removed from his previous office as a judge for gross
misconduct , having been found to have attempted to influence judges of the
Constitutional Court to decide a politically sensitive case relating to former President and
now member of the MK Party, Mr. JG Zuma. The finding of gross misconduct was made
by the JSC itself, and confirmed by the Courts, which dismissed Dr Hlophe's claims
that the JSC had acted ultra vires, had acted unconstitutionally , and that it lacked
impartiality .
Designating an individual to the JSC who has been found by the very body in question
to have committed gross misconduct and has been removed from a position as a judicial
officer to play a role in the selection of other judicial officers would be completely
22 Rules of the National Assembly, 9th Edition, 26 May 2016 ("NA Rules").
23 The FF+, the ACDP, the IFP, ActionSA , Rise Mzansi and BOSA all appeared to support the DA when the
objection was raised.
14
inappropriate . It would be irrational and, in our view, susceptible to legal challenge , and
it would undermine public confidence in the judicial appointments process, and thereby
in the judiciary.
We accordingly urge Parliament not to vote to designate Dr Hlophe as a member of
the JSC, in order to protect the integrity of the JSC, the judicial appointments process,
and the judiciary".24
[39) The DA thus relied on two points:
(a) Firstly, the decision to designate a nominee to serve on the JSC is not merely a
political one but the exercise of public power aimed at contributing to the
establishment of the JSC. The NA is therefore required to act reasonably and
rationally. The DA contended that the decision to designate Dr Hlophe just months
after the NA had impeached him, was not rational.
(b) Secondly , the DA contended that there was a real risk that, if Dr Hlophe were
designated to serve on the JSC, many applicants to be interviewed by the
JSC would object and apply for the recusal of Dr Hlophe. This may potentially
disrupt the interview conducted by the JSC and result in endless review
processes.
MK and Dr Hlophe's response regarding the designation
[40) The arguments raised in favour of the designation of Dr Hlophe were the following:
(a) MK and the EFF submitted that Dr Hlophe is eminently qualified to serve on
the JSC because he has a doctorate in law and had served as a judge.
(b) The Constitution does not provide specific qualification criteria for designation
to the JSC other than being a member of the NA. MK reasoned that-
"The Constitution does not contain an inherent qualification requirement for
members to sit on the JSC. Since members who qualify to be appointed to the JSC
are already members of parliament and therefore bound by their oath of office. The
Constitution , in its wisdom, does not regulate the qualification of members to sit in
24 ActionSA , UDM, Build One South Africa made similar statements cautioning against the designation of Dr
Hlophe.
15
the JSC. The existing Constitution 's scholarship on the makeup of the JSC
endorses the appointment of politicians to the JSC."25
[41] The MK relied on established Rules and Practices of Parliament and contended that
the NA cannot deviate from the existing practice without an amendment to the Constitution or
the NA's Rules.
External objections
[42] FUL and other non-governmental organisations ,26 also raised similar objections. In
response, the Speaker stated as follows:
"I have taken note of the contents of your correspondence. As you will be aware, Section
178(1 )(h) of the Constitution (1996) requires that the composition of the JSC must include
'six persons designated by the National Assembly from among its members , at least three
of whom must be members of opposition parties represented in the Assembly '. The
Constitution therefore only includes two requirements in relation to the designation of
persons by the Assembly: firstly, that the person be a member of the Assembly and, secondly,
that half of the persons so designated be drawn from the opposition benches. There are
no further criteria.
In the context above, it should be noted that there is no specific requirement that a member
of Parliament be 'fit and proper'. This is no doubt in part because the inclusion of public
representatives on the JSC is premised on the fact that these persons represent the
electorate rather than because of any special or specific expertise or capabilities , as is the
case with other legal experts and members of the judiciary, who serve on-the JSC. In the
matter at hand, Dr Hlophe is a duly sworn in member of the Assembly who is lawfully
occupying a seat in Parliament. In addition, as a member of the uMkhonto Wesiz.we Party
(MK), he is also a member of the opposition . For the reasons expressed , there is no legal
impediment which would prevent Dr Hlophe from serving on the JSC.
Notwithstanding the above, members of Parliament are duty bound to act in an ethical
manner. Clause 4 of Schedule 2 of the Constitution requires all members to take an oath or
solemnly affirm their faithfulness to the Republic of South Africa, their commitment to respect,
obey and uphold the Constitution and to perform their functions to the best of their ability.
2s Other parties such as the EFF, Al-Jama-ah , UAT also supported the nomination of Dr Hlophe.
26 In a letter dated 9 July 2024.
16
Furthermore, members of Parliament must comply with the Code of Ethical Conduct and
Disclosure of members' Interests for Assembly and Permanent Council Members ('Ethics
Code').
Ultimately , the decision to designate Dr Hlophe, or any other member, to the JSC will rest with
the collective of the National Assembly".
[43] Three points emerge from the Speaker's response:
(a) There is no restriction on who may be nominated from the ranks of MPs
for designation to serve on the JSC. The only criterion for nomination is
that the nominee must be an MP.
(b) There is no specific "fit and proper" criterion for a designee.
(c) The ultimate decision rests with the collective of the NA.
[44] These points will be addressed in more detail, as they go to the heart of the matter.
Designation on 9 July 2024
[45] On 9 July 2024, despite the objections of the DA and other external parties and following
previous parliamentary practice in terms of which nominees were merely designated without
question, the NA voted in support of the motion to designate all six nominees, including Dr
Hlophe, to serve on the JSC in terms of section 178(1 )(h) of the Constitution. Only the DA,
the FF+, and the ACDP voted against Dr Hlophe's designation.
[46] On the facts before us, the NA had failed to appreciate that it had the discretion to
designate and therefore failed to exercise that discretion. The NA merely acted in accordance
with established parliamentary practice, whereby all nominations were accepted. It should
also be pointed out that, while it may have been the established practice of the NA in the past
to accept nominations submitted by political parties, the practice developed in a context in
which no nominated MP had previously been removed from judicial office for misconduct.
The circumstances surrounding this particular nomination were, therefore, unique and
exceptional.
Rules of NA
17
(47] Regarding the role of the relevant Rules of the NA, the Speaker explains that there
was a departure from the previous convention of simply accepting the nominations to the
extent that the designation of Dr Hlophe was put to a vote. The NA was divided, with some
MPs expressing the view that the suitability of a nominee (regardless of academic
qualifications) for the task of serving on the JSC was pertinent, whilst others took the view that
there was no bar to any member of the NA being designated to the JSC. The majority then
voted in favour of his designation, and the motion carried.
(48] Both MK and Dr Hlophe rely on the fact that his nomination followed an established
practice -allegedly provided for in the Rules of the NA -whereby nominations by political
parties were accepted as a matter of course. MK contends that Corruption Watch should
have challenged what it contends is an "unwritten rule" of the NA.
(49] We disagree as this submission loses sight of Rule 9(2) of the Rules of the NA, which
states that -
"Conventions and practices must be consistent with the provisions of the Constitution ,
these rules, orders of the House, rulings, and directives and guidelines of the Rules
Committee ."
(50] The interpretation of the convention/practice advanced by MK and Dr Hlophe is plainly
inconsistent with the provisions of section 178(1 )(h) of the Constitution, which requires the
NA to independently exercise its discretion in determining whom to designate to the JSC. The
NA may not abdicate this constitutional responsibility by simply deferring to the dictates of a
political party, as occurred in the present case.
(51] Dr Hlophe also says the NA has "exclusive cognisance " or "exclusive jurisdiction over
how its proceedings are to be conducted, and the conduct of these proceedings is not subject
to examination elsewhere". Corruption Watch correctly submits that this argument is
fundamentally flawed. The NA has failed to discharge its constitutional responsibility. The
designation of Members of Parliament to the JSC is not a mere internal process of the NA; it
constitutes a public decision with significant constitutional implications. Such a designation
directly affects the composition of the JSC, which plays a pivotal role in appointing judges
and, by extension , safeguarding the integrity and independence of the judiciary. In any event,
Dr Hlophe's contention is wrong as a matter of law. Under our Constitutional order, the
lawfulness of Parliament's proceedings is subject to judicial review. Our Courts have set aside
18
the proceedings of Parliament on numerous occasions.27
[52) However, whether such a practice or convention is valid regarding the appointment of
Parliamentary committees generally is irrelevant to this case. In any event, the JSC is not a
Parliamentary committee -it is a body established by the Constitution, consisting of members
from several different sources, and not only from members of parliament.
Section 178(1 )(h) of the Constitution
[53) The interpretation of section 178(1 )(h) goes to the heart of the matter. The Speaker is
correct that nothing in the wording of section 178(1 )(h) of the Constitution specifically
constrains the power of the NA to designate other than to require that half of the members
must be from opposition parties. Conversely, nothing in this section prescribes that the NA
must merely designate whichever MPs the various political parties nominated. The power to
designate is afforded to the NA, not political parties. The power to designate does not permit
the NA to act as a mere rubber stamp for nominations advanced by political parties, which
the NA readily conceded.
[54) Despite accepting that the role of the NA under section 178(1)(h) of the Constitution is
not to merely "rubberstamp " a nomination by any one political party, this is precisely what
occurred. The facts show that the NA laboured under the mistaken belief that it had no choice
but to follow the NA Rules and that the Constitution left them with no choice but to designate
(in other words, "rubberstamp") those nominated by the various political parties.
[55) The NA may not abdicate to any other person, body, or political party (as it has done
in this matter) its power to designate members to the JSC. In Hofmeyr v Minister of Justice
and Another,28 the court made it clear that an official vested with a discretionary power may
not abdicate a discretionary power:
"[A] discretionary power vested in one official must be exercised by that official (or his
27 See for example, United Democratic Movement v Speaker of the National Assembly and Others [2017) ZACC
21; 2017 (5) SA 300 (CC); 2017 (8) BCLR 1061 (CC) Mazibuko NO v Sisulu and Others NNO [2013) ZACC
28;2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) and Speaker of the National Assembly v Public Protector
and Others (2022] ZACC 1; 2022 (3) SA 1 (CC); 2022 (6) BCLR 744 (CC).
2s 1992 (3) SA 108 (C) at 117E-G. This matter was confirmed on appeal. See: Minister of Justice v Hofmeyr
(240/91) (1993] ZASCA 40; 1993 (3) SA 131 (AD); (1993) 2 All SA 232 (A)
19
......... lawful delegate) and that, although where appropriate he may consult others and obtain
their advice, he must exercise his own discretion and not abdicate it in favour of someone
else; he must not ... 'pass the buck' or act under the dictation of another and, if he does,
the decision which flows therefrom is unlawful and a nullity."
[56] The power to designate is constrained only by the Constitution and other provisions
and principles in the Constitution. They are the following:
(a) The NA must act rationally. This is a requirement of the principle of legality.
Rational action must be rationally connected to the purpose for which the
power is exercised.
(b) Section 165(4) of the Constitution clearly requires that the NA "must assist
and protect the courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts."
(c) The NA must act lawfully. If it acts based on a material error of law, it acts
unlawfully and contrary to the principle of legality.
Section 165 of the Constitution
[57] Section 178(1 )(h) must be read with due regard to the powers conferred on the courts
and the obligations placed on organs of state in terms of section 165 of the Constitution.
(58] Section 165 entrusts the courts with considerable power and responsibility: Judges
have the power to develop, interpret, and apply the law and declare laws passed by
Parliament and the executive's conduct unconstitutional.29 This section further affirms the
independence and impartiality of the courts and provides for the institutional protection for all
courts. 30 In terms of section 165(4) of the Constitution, Organs of State, such as the NA, are
constitutionally required to assist and protect the courts to ensure their independence ,
impartiality, dignity, accessibility, and effectiveness. It follows that a decision of the NA will
be unlawful and unconstitutional if it runs against the requirements in section 165(4). This
section reads as follows in relevant part:
2s Sachs v Donges NO 1950 (2) SA 265 (A) at 312; Gcaba v Minister for Safety and Security and Others [2009]
ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at paras 60 -62.
30 Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa lnteNening)
[2002] ZACC 8; 2002 (5) SA 246 (CC); 2002 (8) BCLR 810 (CC) at para 18 (Van Rooyen).
20
"(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which
they must apply impartially and without fear, favour or prejudice .
(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state. through legislative and other measures. must assist and protect the
courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of
the courts.31
(5) An order or decision issued by a court binds all persons to whom and organs of state
to which it applies".
The Judicial Services Commission
[59] A strong and independent judiciary, as contemplated by section 165 of the
Constitution, is vital to maintaining our constitutional democracy.32 The JSC is established in
terms of section 178 of the Constitution as the constitutional body responsible for
recommending judicial candidates for appointment (and removal) by the President.33 As such,
it fulfills a function of "singular importance".34
[60] Section 178 of the Constitution provides for a broadly-based selection panel that will
provide a check and balance to the executive's power to make such appointments. The
composition of the JSC as prescribed by section 178 is thus deliberately designed to promote
the democratic legitimacy and effectiveness of the courts within our legal system of
separation of powers with checks and balances.35 This was also confirmed by the Full Court
in Hlophe v Judicial Service Commission:36
"[32] It is true that section 178 was crafted with obvious care. As noted in Premier
31 Emphasis Added.
32 Helen Suzman Foundation (above n 1) at para 32.
33 Section 178(4) of the Constitution.
34 Helen Suzman Foundation ( above n 1) at para 37.
3s Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa (1996] ZACC 26; 1996 (4) SA 7 44 (CC); 1996 (10) BCLR 1253 (CC) ("First Certification case''):
"(124] Appointment of Judges by the Executive or a combination of the Executive and Parliament would
not be inconsistent with the CPs. The JSC contains significant representation from the Judiciary, the
legal professions and political parties of the opposition. It participates in the appointment of the Chief
Justice, the President of the Constitutiona l Court and the Constitutional Court Judges, and it selects the
Judges of all other courts. As an institution it provides a broadly based selection panel for appointments
to the Judiciary and provides a check and balance to the power of the Executive to make such
appointments. In the absence of any obligation to establish such a body, the fact that it could have been
constituted differently , with greater representation being given to the legal profession and the Judiciary,
is irrelevant. Its composition was a political choice which has been made by the CA within the framework
of the CPs."
36 Hlophe v Judicial Service Commission (above n8) at para 32.
21
(WCC):
" ... [l]t is clear to me that the JSC has been constructed in a structured and
careful manner .
. . . The Constitution gives its considered attention to persons who sit on the JSC
when it is called upon to determine, inter a/ia, matters relating to judicial
misconduct."
And in JSC v Cape Bar (SCA), the SCA stated that:
"I believe it is clear from section 178 of the Constitution that the JSC has been
created in a structured and careful manner.""37
[61] Public confidence in the judiciary's composition and administration of justice is vital.
This was emphasised by the Constitutional Court in Van Rooyen38 as follows:
"[32] That the appearance or perception of independence plays an important role in
evaluating whether courts are sufficiently independent cannot be doubted. The reasons
for this are made clear by the Canadian jurisprudence on the subject, particularly
in Valente v The Queen where Le Dain J held that:
'Both independence and impartiality are fundamental not only to the capacity to do
justice in a particular case but also to individual and public confidence in the
administration of justice. Without that confidence the system cannot command the
respect and acceptance that are essential to its effective operation. It is, therefore ,
important that a tribunal be perceived as independent and impartial, and that the
test for independence should include that perception.' 39
The jurisprudence of the European Court of Human Rights also supports the principle that
appearances must be considered when dealing with the independence of courts."
[62] In similar terms, the Constitutional Court in Glenister v President of the Republic of
South Africa and Others40 referring to its decision in Van Rooyen,41 emphasised the
importance of public perception and confidence in the independence of the judiciary:
"This Court has indicated that 'the appearance or perception of independence plays an
important role' in evaluating whether independence in fact exists. This was said in
37 Footnotes omitted.
38 Van Rooyen (above n30) at para 32.
39 Emphasis added.
40 [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) at para 207.
41 Van Rooyen (above n30) at para 32 the Constitutional Court endorsed the finding in Valente v The Queen
(1986) 24 DLR (4th) 161 (SCC) at 172 that the test for independence should include the public.
22
connection with the appointment procedures and security of tenure of magistrates. By
applying this criterion we do not mean to impose on Parliament the obligation to create
an agency with a measure of independence appropriate to the judiciary. We say merely
that public confidence in mechanisms that are designed to secure independence is
indispensable. Whether a reasonably informed and reasonable member of the public will
have confidence in an entity's autonomy-protecting features is important to determining
whether it has the requisite degree of independence. Hence, if Parliament fails to create
an institution that appears from the reasonable standpoint of the public to be independent,
it has failed to meet one of the objective benchmarks for independence. This is because
public confidence that an institution is independent is a component of, or is constitutive
of, its independence. "
Appointment criteria for judges
[63] To fulfil its constitutional mandate to safeguard our constitutional democracy and to
promote a strong and independent judiciary, the JSC must ensure that only suitably qualified,
fit, and proper individuals are appointed to judicial office.42 The relevant part of section 174
reads as follows:
"( 1) Any appropriately qualified woman or man who is a fit and proper person may be
appointed as a judicial officer. Any person to be appointed to the Constitutional Court must
also be a South African Citizen.
(2) The need for the judiciary to reflect broadly the racial and gender composition of South
Africa, must be considered when judicial officers are appointed."
[64] The legitimacy of the judicial appointment process is further integral to the judiciary's
moral authority and integrity, and maintaining public confidence in the institution.43 To this
end, commissioners must rigorously assess each candidate 's fitness and propriety, including
their integrity, dignity, humility, judgment, character , honesty, and trustworthiness.
42 Section 174(1) of the Constitution. See also the JSC's Summary and Explanation of the Criteria and
Guidelines used by the Judicial Service Commission when considering Candidates for Judicial Appointment.
43 S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (Mamabolo)at para 16: "It
is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential.
Having no constituency , no purse and no sword, the Judiciary must rely on moral authority. Without such
authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between
organs of State and, ultimately, as the watchdog over the Constitution and its Bill of Rights -even against the
state."
23
[65] The NA's means of achieving the purpose behind the appointment of judges was to
designate Dr Hlophe as a member of the JSC.
Appointment criteria for commissioners
[66] One of the issues in dispute is whether the "fit and proper" criteria are applicable to
the designation for appointment to the JSC from among MPs to serve on the JSC.
[67] We have referred to the view articulated by the Speaker, Dr Hlophe, and MK that,
apart from the requirement that a designee must be drawn from MP's, there are no further
criteria, and more specifically, no requirement, on a proper interpretation of section 178(1 )(h),
that a designee must be "fit and proper". Dr Hlophe also insists that, for as long as he remains
a member of the NA, he is entitled to be nominated to serve on the JSC. MK has also
unequivocally stated that it has no intention of replacing Dr Hlophe as its designated member
to the JSC.
[68] Even if section 178 (1) (a) -(k) of the constitution does not explicitly prescribe to the
NA that members to be designated to the JSC must be "fit and proper," we are enjoined to
interpret constitutional provisions in a manner that promotes the values of an open and
democratic society based on human dignity, equality and freedom.44 Additionally, we have
to consider principles such as the rule of law, integrity, and public trust. Chief Justice
Dickson of the Canadian Supreme Court remarked as follows in Hunter et al. v. Southam
/nc.45 when dealing with interpretation of constitutional provisions:
"The task of expounding a constitution is crucially different from that of construing a statute. A
statute defines present rights and obligations. It is easily enacted and as easily repealed. A
constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing
framework for the legitimate exercise of governmental power and, when joined by a Bill or a
Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted,
its provisions cannot easily be repealed or amended . It must, therefore, be capable of growth
and development over time to meet new social, political and historical realities often unimagined
by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its
provisions , bear these considerations in mind. Professor Paul Freund expressed this idea aptly
when he admonished the American courts "not to read the provisions of the Constitution like a
44 Section 39 of the Constitution
45 Hunter et al. v. Southam Inc. [1984) 2 SCR 145, Canadian Supreme Court case number: 17569.
24
last will and testament lest it become one. "
[69] The question whether 'fit and proper' criteria are applicable was addressed in Helen
Suzman Foundation46 by Madlanga J with reference to section 178(1 )(a) -(k) of the
Constitution. He emphasised the importance of ensuring that those entrusted with the
responsibility of nominating and designating individuals for membership of the JSC approach
this task with the requisite seriousness and diligence. Madlanga J had no difficulty in holding
that the obligation to appoint only individuals who are "suitably qualified for the position" as
judges equally applies to those entrusted with "nominating, designating, or electing"
individuals for membership of the JSC. He also cautioned that rules that threatened the ability
to appoint the best candidates as judges "would have serious consequences for the judiciary
and, consequently, our constitutional democracy as a whole":47 The Constitutional Court held
that:
"[36] In order to assess the impact of the disclosure of deliberations on the selection
process properly, it is worth having a close look at who make up the JSC. Some become
members of the JSC by virtue of the office they hold. These are the Chief Justice, the
President of the Supreme Court of Appeal, the Cabinet member responsible for the
administration of justice, and -when the JSC is considering matters relating to a specific
division of the High Court -the Judge President of that division and the Premier of the
province concerned. The remaining members are nominated , designated or elected by a
variety of bodies and the President. They are: one Judge President designated by the
Judges President; two practising advocates nominated from within the advocates '
profession ; two practising attorneys nominated from within the attorneys ' profession; one
teacher of law designated by teachers of law at South African universities ; six persons
designated by the National Assembly from amongst its members ; four permanent
delegates to the National Council of Provinces with a supporting vote of at least six
provinces; four persons designated by the President as head of the national executive ,
after consulting the leaders of all the parties in the National Assembly . All those who are
nominated -and not designated or elected -are appointed by the President.
[37] Since courts play a crucial role in our constitutional democracy, without doubt the
JSC's function of recommending appointments to the senior judiciary is of singular
46 Helen Suzman Foundation (above n1) at paras 36 -7.
47 Id at para 34.
25
importance. Bearing in mind the importance of this function, I do not think it unreasonable
to expect that those that bear the responsibility of nominating, designating or electing
individuals for membership of the JSC will take their responsibility seriously and identify
people who are suitably qualified for the position. Of course, we cannot be blind to some
bad appointments to a variety of senior positions that we have witnessed in litigation that
has come before the courts. But that is not reason enough to make an assumption that
the JSC may well be saddled with bad appointments. As for those whom the Constitution
has identified for membership by virtue of their office, I cannot second-guess the framers
of the Constitution in selecting the relevant offices. If anything and barring individual
shortcomings which -from time to time -do manifest themselves even in the highest and
most respected of offices, these offices are eminently qualified for membership of the
JSC."4a
[70] Requiring that "those that bear the responsibility of nominating, designating or electing
individuals for membership of the JSC will take their responsibility seriously and identify
people who are suitably qualified for the position",49 must mean more than simply requiring
that designees for appointment to the JSC meet the basic eligibility criterion of being MPs or
advocates or attorneys. It means that, to fulfil its constitutional mandate of appointing judges
who will uphold the legitimacy of the judiciary and the spirit and tenets of the Constitution , the
designating body (the NA) must ensure that the process for the designation and appointment
of those responsible for selecting judges is subject to stringent standards. Most importantly ,
the NA, as the designating authority, must, in exercising its discretion , designate from among
the nominees' individuals who are not only formally eligible but who are also substantively
suited for appointment to the JSC. The judiciary's legitimacy depends heavily on public trust
and respect. Once public trust in the judiciary is eroded, democratic foundations are broken
and chaos is bound to descend.
[71] As already pointed out, designating a person who is not fit and proper to serve on the
JSC undermines the constitutional imperative set out in section 165(4) of the Constitution.
Such a designation not only erodes public confidence in the independence , impartiality, and
dignity of the judiciary but also compromises the integrity and credibility of the JSC itself. Any
act that diminishes public respect for the judiciary constitutes an affront to the foundational
values of our constitutional democracy.
48 Emphasis added and footnotes omitted.
49 Helen Suzman Foundation (above n1) at para 37.
26
[72] The Full Court in Hlophe v Judicial Services Commission,50 in similar terms, went on
to explain that "[w]hen choosing judges, the JSC acts as the selection panel of the nation.
When disciplining judges, the JSC serves as the jury of the nation".51 The Court further held:
"[50] In summary on this point, if the JSC is to choose persons who can enjoy public
credibility as fit for purpose as judges and to discipline judges for their failure to adhere
to the norms of the judicial role, the JSC had to be constructed to meet democratic
norms so that it could make a claim for its own public credibility in a democratic
society. Its representative character is therefore an essential component of its
structure, and moreover, of its mode of functioning."
[73] Other regional instruments , such as the Lilongwe Principles and Guidelines on the
Selection and Appointment of Judicial Officers ("the Lilongwe Principles"), are also
instructive when interpreting the NA's powers in terms of section 178(1 )(h) of the
Constitution. These principles were adopted at the Southern African Chief Justices' Forum
Conference and Annual General Meeting, Lilongwe held on 30 October 2018. Some of the
important principles from the Lilongwe Principles are highlighted by FUL in its founding
affidavit. These include:
(a) The selection and appointment authority (of judicial officers) should be
independent and impartial;52
(b) There is a need for adequate separation between the administration of the
selection and appointment authority (the JSC) from any factors which may
affect the integrity of the process.53
(c) Judicial independence is ensured through the integrity of the selection
and appointment process along with security of tenure of judicial officers.
This process enhances public confidence and trust in the administration of
justice.54
50 Hlophe v Judicial Service Commission (above n8).
51 Id at para 48.
52 Principle (ii) the Lilongwe Principles.
53 Id.
54 Principle (i) the Lilongwe Principles .
27
Events after the impeachment of Dr Hlophe
[74] We have already briefly referenced the facts that led to the impeachment of Dr
Hlophe. These are well-known, and it would serve no purpose to regurgitate the extensive
material presented to the Judicial Tribunal and the JSC. That said, the dispute now before
us must be determined not only in light of the unprecedented circumstances surrounding Dr
Hlophe's impeachment, but also with reference to the events that unfolded thereafter ,
particularly following the delivery of the Full Court's judgment in Part A. These subsequent
developments are not only pertinent to the question of Dr Hlophe's continued suitability to
serve on the JSC but also bear on the issue of whether a costs order should be granted in
these proceedings.
[75] Dr Hlophe does not accept the findings against him by the JCT, the JSC, the NA, and
the courts and maintains that no legal process was followed to remove him from office. He
further asserts that the decision to impeach him was political. He states that -
'There was no legal process followed by the National Assembly to impeach me and the
law which included holding a proper hearing to receive and evaluate the evidence was
simply sacrificed at the altar of political expediency."55
[76] Dr Hlophe also says that the mere fact that he did not accept the findings of "the JSC,
the Full Court in the Gauteng High Court Division, the NA's hasty and unconstitutional
conduct does not mean that [he undermines] the judiciary". 56
--[77] After he was sworn in as an MP, he said the following in an interview with the SABC:57
"The decision to impeach me was a political decision. I said it before. I was impeached
and maintain that. There was no law that was ever used there. It was politics, and I do
believe that the fact that I was perceived as being closely associated with President Zuma
is another reason for the decision that was taken."
[78] He also claims that he was being "persecuted " and that he was "dismissed summarily
from office" and "just fired and treated like a dog".58 The same arguments had been raised
55 Dr Hlophe's Answering Affidavit to FUL at para 102.
56/d at para 98.
57 10 July 2024.
58 FUL Founding affidavit at para 104.
28
before and were rejected by the Tribunal, the Portfolio Committee , and the NA.
Judgment of Wilson, J
[79] Dr Hlophe and MK also sought to circumvent the consequences of an interdict59 in
terms of which Dr Hlophe was precluded from sitting as a member of the JSC, by launching
an urgent application before the Johannesburg Division of the High Court.60 In this
application, they sought to interdict the JSC from conducting the October 2024 interviews
for important judicial appointments without Dr Hlophe's presence. Wilson, J, dismissed the
application. Although stating that he could not deal with the scandalising of the Court in such
an urgent hearing, the court, nonetheless, said the following:
"22 FUL amplified its submissions by reference to a press release issued by MK in the
aftermath of the Full Court's ruling. As Mr. Mpofu accepted , the content of that press
release is deeply troubling. I will not give it credence by repeating its contents here. It is
enough to say that the press release constituted a gratuitous and wholly unjustified attack
on the Full Court's decision, and on the judiciary in general. It reflects poorly on MK, and
upon the individuals who are responsible for drafting and issuing it. Dr. Hlophe, and
former President Jacob Zuma, who is the leader of MK Party, have been invited to
dissociate themselves from it. I hope that they do so.
23 It may be true, as Mr. du Plessis submitted , that the press release was contemptuous
and that, for that reason, the right to free expression does not extend to it. But it forms
no part of my function to make that determination here. The issue of which side of the
line the press release falls was not fully argued before me, and there is no reason why
the contempt it may very well have constituted cannot be explored, and if necessary
punished, in other proceedings ".
The application for leave to appeal Part A of the Full Court
[80] After the Full Court had granted Part A in these proceedings, Dr Hlophe launched a
fresh attack on the credibility of the judiciary by attacking the integrity of the presiding judges.
In its unreported judgment refusing leave to appeal the judgment of the Full Court handed
s9 On 27 September 2024, a Full Court sitting in the Western Cape interdicted and restrained Dr. Hlophe from
"participating in the processes of' the JSC: Democratic Alliance v Hlophe (above n 12).
60 Umkhonto Wesizwe Party and Another v Judicial Service Commission and Others [2024] ZAGPJHC
992 at paras 22 -3.
29
down in Part A, reference is made to certain remarks made by MK and Dr Hlophe after their
judgment in Part A.61 The Full Court62 dealt with the public statements in its judgment
refusing Dr Hlophe's and MK's applications for leave to appeal with punitive costs as follows:
"42. Ms February refers to "MK Party's contemptuous statement on the part A judgment"
and says "following the delivery of judgment by this court, the MK party chose to launch
a vitriolic attack not only against the court, but also against non-governmental
organisations that had challenged the designation of Dr Hlophe by the National
Assembly. "
43. She describes how the statement refers to the "continued lynching of Dr
Mandlakayise Hlophe" and how it went on to state "the MK Party notes the incompetent,
irrational, absurd and blatantly political judgment of the Western Cape High Court, which
is regrettable but not surprising."
44. This wanton attack on the judiciary cannot and shall not be tolerated by our courts
in the interests of preserving the rule of law and safeguarding the institutional integrity
of our judicial system.
45 ....
46. The media statement was made by a party which forms part of the Legislature and
shares the responsibilities imposed by section 165(4) of the Constitution on organs of
the state including the Legislature.
47. The obligations which are clearly stated in s. 165(3) leave no room for doubt
regarding the obligation imposed on state organs such as Parliament and parties such
as the MKP and it states: '(3) No person or organ of state may interfere with the
functioning of the courts'. The publication of the said statement is an affront to these
obligations.
48. Ms February makes further references to the attack in the statement , which was wide­
ranging and spewing venom at all the participants in the democratic project, and in that
vein stated:
'As history has shown, it was the racist DA, supported by the ANC of Cyril Ramaphosa
61 On 6 February 2025, MK lodged an out-of-time application for leave to appeal to the Constitutional Court
against the Full Court's Part A judgment.
62 Democratic Alliance v Hlophe and Others, unreported judgment of the Western Cape Division, Cape Town,
case numbers 16170/2024, 16771/2024 , 16463/2024 (20 December 2024) at paras 42-55.
30
that voted for the impeachment of Dr Hlophe as a judge. The same DA now colluding
with Freedom Under Law and Corruption Watch -racist agents of white monopoly
capital masquerading as civic organisations -who want to usurp the power of the
Legislature using the Judiciary.'
49. Describing a judgment in the terms quoted above is deeply offensive, disrespectful
and contemptuous. It grossly exceeds the bounds of legitimate comment and is
deliberately intended to impugn the dignity and effectiveness of the court and the
judiciary.
50. Instead of dealing with the facts and the law the applicants chose to attack the
respondents utilising baseless and highly defamatory statements that FUL is racist and
an 'an agent for white monopoly capital'. This smacks of gutter politics and can hardly
be expected of an organisation that represents voters in parliament.
51 ....
52. None of Mr Zuma, Dr Hlophe and MK has publicly distanced themselves from the
scandalising statements made of this Court.
53. Ms February also makes reference to the Sunday Times of 13 October 2024 where
Dr Hlophe was reported as saying:
We lost two successive games, and you know what happens in South Africa -you
lose, you lose, you lose. I was a judge myself for 29 years. It did not surprise me
when we lost, because we know the judiciary is captured. It is as simple as that.'
This contemptuous and unsubstant iated statement implicating both the Full Court of
the Western Cape High Court and Judge Wilson of the Gauteng Division and the
entire judiciary was made to a national newspaper without an iota of evidence. This
speaks to Dr Hlophe denigrating this Court and the judiciary at large."63
[81] Notwithstanding the findings of the Full Court regarding these public statements , both
Dr Hlophe and MK continue to stand by those statements in their supplementary answering
affidavits in these proceedings.
[82] Dr Hlophe, in Hlophe v Judicial Services Commission64 relied on his right to freedom
of speech to justify his utterings denigrating the judiciary. The Full Court in Hlophe was
63 Emphasis added.
64 H/ophe v Judicial Services Commission (above n8) at para 130.
31
clearly not persuaded by the argument and said the following:
"[130] The contention that section 16 freedom of expression rights arise at all is
misconceived. There is no room to prevaricate about the role of a judge requiring the
imposition of several ethical restraints to which the general public are not bound. Though
everyone is at liberty to think what they like, judges are bound to conduct themselves at
all times in a manner that protects and promotes the integrity of the legal process. In
that context, it is not open to a judge in a private conversation to blurt out his preferences ,
biases or opinions to a fellow judge who, to his knowledge , is preparing a judgment on
those very issues about which he has a firm view. Every ethical judge would expect the
same restraint from other colleagues. "
[83] Dr Hlophe not only attacked the judges who presided in Part A of these proceedings ,
he also criticised other judgments that have gone against him. He does not simply describe
these decisions as incorrect; he, in fact labels them as "an abuse of judicial authority"65 and
says that "[i]t appears to be that there was a general political drive to have my [removal]
achieved irrespective of the legalities of it".66
[84] Dr Hlophe further blames organisations such as FUL for his impeachment , claiming
that he was "unconstitutionally removed from office through the dubious interference of
organisations like the FUL."67 Dr Hlophe further made it clear that he planned to promote in
the JSC the conduct that led to his impeachment and that "I will make sure that judges are
not victimised for holding private views and expressing them to their colleagues".68
[85] But, as pointed out by the Constitutional Court in S v Mamabolo,69 there is a difference
between legitimate criticism of the judiciary and scandalising the court:
"An important distinction has in the past been drawn between reflecting on the integrity
of courts, as opposed to mere reflections on their competence or the correctness of their
decisions. Because of the grave implications of a loss of public confidence in the integrity
of its judges, public comment calculated to bring that about has always been regarded
with considerable disfavour. No one expects the courts to be infallible. They are after all
human institutions. But what is expected is honesty. Therefore the crime of scandalising
65 Dr Hlophe's Answering Affidavit to FUL at para 120.
66 Id at para 149.
67 Dr Hlophe to FUL Part A AA at para 133.
Ga Id at para 135.
69 Mamabolo (above n43).
32
is particularly concerned with the publication of comments reflecting adversely on the
integrity of the judicial process or its officers."70
(86] It is concerning that Dr. Hlophe continues to refuse to acknowledge any wrongdoing
or accept accountability, despite the adverse findings made against him by the JCT, the
JSC, and the courts. He maintains that the conduct that was found to constitute gross
misconduct should be permissible amongst judges. He says that: it "should not be our
culture that judges are removed from judicial office because of private remarks such as those
I made to the two judges"71 and undertakes that as an MP he will be "advocating for a culture
where judges freely engage with each other -which culture has been confirmed by
numerous judges appearing before the JSC in which they have declared that they
unreservedly assist new judges or other colleagues with their work".72 He also undertakes
to promote this culture in which "judges are freed from the fear of retribution and arbitrary
removal from judicial office for remarks that they make to each other on pending matters".73
FUL 's supplementary affidavit and supplementary replying affidavit
(87] In its supplementary affidavit and supplementary replying affidavit, FUL referred the
Court to five media publications, all published after the Full Court's judgment was handed
down, each containing further scandalous attacks on the judiciary.
(88] FUL accepts that some of the denigrating statements were made after the NA had
decided to designate Dr Hlophe and thus were not before the NA at the time. FUL also
accepts that its review is based on the facts set out in their founding affidavit and not those
set out in its supplementary and supplementary replying affidavit. FUL, however submitted
that it is important that these further and continued denigration of the judiciary are
nonetheless relevant to this Court's broad remedial powers.74 FUL further submitted that the
evidence is relevant for at least three reasons. The first is that Dr Hlophe and MK have
denied that Dr Hlophe disrespects or seeks to undermine the judiciary but, if regard is had
to more recent statements, little reliance can be placed on Dr Hlophe's denials and, as FUL
70 Id at para 33.
71 Dr Hlophe in FUL Part A AA at para 27.
72 Id at para 23.
73 Dr Hlophe answering affidavit in FUL Part A at para 25.
14 See, for example, Al/pay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer
of the South African Social Security Agency and Others (No 2) [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014
(6) BCLR 641 (CC). In particular , the Court must consider the consequences of any remedial action under
section 172( 1 )(b ).
33
submitted, should be rejected on the papers. Secondly, the recent public statements make
it clear that Dr Hlophe has every intention to continue to denigrate the judiciary. As such,
FUL submits, Dr Hlophe is unsuitable to sit on the JSC. Thirdly, FUL submits that the recent
further conduct of Dr Hlophe and MK; their continuing and unrepentant attacks against the
Full Court's decision in Part A; and their emphatic reaffirmation of those statements in Part
B makes it clear that a punitive costs order is warranted. In one of the Press Statement75 it
is said for instance that:
"Statement on the judgment of the Western Cape High Court in favour of the continued
lynching of Dr. Mandlakayise Hlophe.
MK notes the incompetent , irrational, absurd and blatantly political judgment of the
Western Cape High Court, which is regrettable but not surprising.
The judgment constitutes gross judicial overreach and disregards the provisions of the
very constitution it purports to uphold.
This constitutional stalemate is deliberately created by the incompetent, politically-driven
and compromised Judiciary. This horror judgment will be subject to an immediate appeal."
[89] FUL addressed a letter to the attorneys for MK and Dr Hlophe after the first press
statement stating that if MK or Dr Hlophe objected to the contents of MK's media statement
then they should publicly say so. On 3 October 2024, MK's attorneys sent a letter stating that
the letter of 2 October 2024 "fell through the cracks due to the current urgent proceedings "
and undertaking "to take instructions" after dealing with the urgent application.
Review
The standard of review
[90) Except for MK, it is not disputed that the NA's decision to designate six members to
the JSC constitutes administrative action under PAJA. In this regard section 1 of PAJA
provides that administrative action comprises -
"any decision taken, or any failure to take a decision, by-
(a) an organ of state, when
75 FUL's supplementary affidavit
34
(i) exercising power in terms of the Constitution or a provincial constitution ;
or
(ii) exercising public power or performing a public function in terms of any legislation;
which adversely affects the rights of any person and which has a direct, external
legal effect. .. "
[91] Having regard to the facts:
(a) The NA is an organ of state.
(b) The decision to designate Dr Hlophe to the JSC was taken in terms of
section 178(1 )(h) of the Constitution , read with the Judicial Service
Commission Act. The mere fact that the source of the power is in the
Constitution does not mean that the power is not administrative in nature.
Section 1 (a)(i) of PAJA expressly provides that administrative action
includes decisions taken by an organ of state when "exercising a power
in terms of the Constitution ". That could not be the case if a constitutional
source was dispositive of the character of a decision.
(c) The decision adversely affects rights in that the decision has the
potential to affect the rights of applicants applying for judicial positions
before the JSC, as well as the constitutional rights of all South Africans.
(d) Lastly, the decision has a direct, external, legal effect of determining who
will fill one of the key positions on the JSC. Although the "legislative
functions of Parliament , a provincial legislature or a municipality" are
excluded from the ambit of section 1 of PAJA, no provision is made for
the exclusion of the administrative functions of the NA. The designation
function is not a legislative function. It is a function performed by the NA
in terms of section 178(1 )(g) of the Constitution.
[92] The NA's function of designating six members is thus "administrative action" as defined
in PAJA. The Speaker does not dispute the contention that the decision in question does not
constitute a legislative function excluded from the definition of "administrative action" under
PAJA and accepts that the NA's function of designating six members amounts to
"administrative action" as defined therein. Dr Hlophe and MK also do not deny that the decision
35
amounts to administrative action.
[93] MK takes issue with the contention that PAJA applies to the review and submits that
the decision to designate Dr Hlophe is only subject to review under the principle of legality.
MK submits that the NA's decision is expressly excluded from PAJA because section
1 (a)(dd) of PAJA applies. This is incorrect. Section 1 (a)(dd) only applies to the legislative
functions of the NA. MK also claims that the exclusion provided for in section 1 (a)(gg) of
PAJA applies to the present matter. We disagree. Section 1 (a)(gg) only applies to decisions
taken by the JSC in terms of any law. It does not apply to the decision of the NA to designate
six of its members to the JSC. The challenge in this matter is the NA's decision -not any
decision taken by the JSC.
[94] MK also argues that the NA took one "indivisible decision" to designate six persons
to the JSC and that, should it be found that the decision is irrational, all six designees must
be removed. We do not agree. There exists no reason why each of these nominations is
dependent on the other. Consequently, nothing prevents a challenge to the designation of
Dr Hlophe only. Moreover , having regard to the unusual facts of this case, there exists a
rational basis for treating Dr Hlophe differently simply on the basis that he is the only
representative of the NA who was designated to sit on the JSC after the NA impeached him
for having committed gross misconduct and whose continued presence as a judge would
undermine the public's confidence in the independence of the judiciary.
[95] Lastly, the Full Court in Part A has already dealt with the applicability of PAJA:
"[57] We are satisfied that the NA's decision to designate six of its members to the
JSC, including Dr Hlophe, amounts to administrative action under PAJA. It is an organ
of State, either exercising a power in terms of the Constitution , or exercising a power
or performing a public function in terms of any legislation. In exercising such power,
a decision was taken which adversely affects the constitutional rights of South African
citizens and has the potential to affect the rights of future applicants applying for
judicial appointment. No doubt, the NA's decision was not a legislative function
excluded from the definition of administrative action, an aspect which the Speaker
does not take issue with. Neither Dr Hlophe, nor ATM further denies that the decision
amounts to administrative action. Only MK states that PAJA is inapplicable. In any
event, if PAJA might be held to be inapplicable , the review court would be entitled to
36
adjudicate the dispute based on the doctrine of legality in due course".76
[96] In conclusion, therefore, we agree with the submission that the impugned decision
constitutes administrative action and is reviewable under PAJA. Moreover , the designation
made by the NA clearly amounts to the exercise of public power under the Constitution and
is therefore subject to the principle of legality. Each of the grounds set out below satisfies
the threshold for judicial review under either PAJA or the principle of legality.
Material error in Jaw
[97] When designating MPs to the JSC, the NA is required to consider whether they are
suitable for appointment. Not only did the NA not exercise a discretion , it mistakenly laboured
under the impression that it did not even have such discretion in terms of section 178(1 )(h) of
the Constitution. As a result, it designated Dr Hlophe without any proper consideration of his
suitability, merely because his political party had nominated him. The designation of Dr
Hlophe was thus based on a material error of law.
[98] The power of the NA to "designate " does not mean that it may blindly follow the dictates
of any political party. It must exercise its own discretion independently . In designating
members to the JSC, the NA exercises public power and must do so in a manner consistent
with the Constitution and the rule of law. The following considerations support this
interpretation of section 178(1 )(h): Firstly, the constitutional text explicitly vests the power of
designation in "the National Assembly" as an institution, not in individual political parties. The
only limitation imposed is that at least three of the six designated members must be drawn
from minority parties. Nothing in the Constitution authorises the NA to delegate or abdicate
its responsibility to political parties. Yet, in the present instance, the NA effectively did so.
Secondly , the record of the proceedings demonstrates that the NA approached the
designation process as though it were appointing representatives to parliamentary
committees or sub-committees . This was a fundamental error. The JSC is not a committee or
subcommittee of Parliament , but an independent constitutional body entrusted with
safeguarding the integrity of the judiciary.
[99] The Speaker thus erred in her view that the sole requirements for designation were
that a nominee must be a member of the NA and that half of the designated members must
76 Democratic Alliance v Hlophe (above n12) at para 57.
37
be drawn from opposition parties. She further erred in her view that no additional criteria were
applicable and, in particular, that there was no specific requirement for a nominee to be "fit
and proper" to be appointed to serve on the JSC. The Constitutional Court per Madlanga, J,
has made it clear that the individuals selected to sit on the JSC must be "suitably qualified"
candidates . It follows that the NA should at least have considered whether Dr Hlophe is
suitably qualified for appointment.
[100] In S v Zuma,77 the Constitutional Court held that "the Constitution must be interpreted
so as 'to give clear expression to the values it seeks to nurture'78 and that 'a Constitution
'embodying fundamental rights should as far as its language permits be given a broad
construction ".79 The Constitutional Court affirmed the proper approach to interpreting the
Constitution with reference to S v Mhlungu80 where the Constitutional Court held that the
Constitution must be "broadly, liberally and purposive ly [be] interpreted so as to avoid 'the
austerity of tabulated legalism'."
[101] The Constitutional Court has affirmed that a proper interpretation of the Constitution
entails not only a textual analysis of its express language but also a purposive reading of the
relevant provisions , viewed through the lens of "the constitutional imperatives of the rule of
law, the separation of powers and judicial independence ".81
[102] The words "fit and proper" are only used four times in the Constitution: (i) In section
17 4(1) in respect to the appointm ent of judges. (ii) Section 193(1) regarding the appointment
of individuals to serve as Public Protector and other commissions created by Chapter of the
Constitution. (iii) The appointment of the Auditor-General in section 193(3) of the Constitution .
(iv) Section 193(3) of the Constitution deals with the appointm ent of commissioners for the
Public Service Commission.
[103] Merely because section 178(1 )(h) of the Constitution does not expressly require that a
designated nominee must be fit and proper for appointment, does not imply that it would be
77 Zuma and Others v The State [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA) at paras 15-
8, applied in Mahlangu and Another v Minister of Labour and Others 2021 (2) SA 54 (CC) at para 55.
78 Referring to Qozoleni v Minister of Law and Order 1994(3) SA 625(E); 1994( 1) BCLR 75(E) at 80.
79 Referring to S v Moagi Attorney-General v Moagi 1982(2) Botswana LR 124 184.
80 [1995] ZACC 4; 1995 (3) SA 867; 1995 (7) BCLR 793 (CC) at para 8.
81 Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v
President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of
Republic of South Africa and Others [2011] ZACC 23; 2011 (5) SA 388 (CC}; 2011 (10) BCLR 1017 (CC) at
para 20.
38
lawful or rational to appoint individuals who are not fit and proper. Such requirement is
necessarily implied through a proper interpretation of the Constitution as a whole. As already
explained, the Constitutional Court in Helen Suzman Foundation made it clear that those
designated to serve on the JSC must be fit and proper candidates. This the NA has failed to
appreciate.
Section 165(4) of the Constitution: Rationality
[104] Section 178(1)(h) must also be read with section 165(4) of the Constitution, bearing in
mind that the fundamental purpose of the JSC is to ensure judicial independence and to
promote public confidence in the judicial appointment process by recommending for
appointment only people who are fit and proper. As pointed out above, the Constitutional
Court in Helen Suzman Foundation made it clear that bodies responsible for designating
individuals to the JSC are obliged to approach this task with seriousness and ensure that
only those who are suitably qualified for the position are selected from the nominees. To hold
otherwise would offend against section 178(1)(h) read with 165(4) of the Constitution and
consequently render them ineffective.
[105] The means adopted by the NA in designating Dr Hlophe merely because he is an MP
following his nomination by MK, is not rationally connected to the constitutional purpose
underlying the power conferred to it by section 178(1 )(h) of the Constitution. Dr Hlophe, as
indicated , was found guilty of gross misconduct and removed from judicial office. He has
refused to acknowledge the impropriety of his conduct and continues to engage in scandalous
attacks on the judiciary. His presence on the JSC ineluctably undermines the legitimacy of
the judicial appointment process. Given his serious breach of the judicial oath, Dr Hlophe is
plainly unfit to assess the suitability of candidates for judicial appointment and has exhibited
a marked deficiency in the qualities essential to the office of a judicial officer.
[106] Section 165(4) of the Constitution requires state organs-in the present matter the NA
-to assist and protect the courts to ensure their independence, impartiality , dignity,
accessibility , and effectiveness . The designation process in terms of section 187(1)(h) is
designed to uphold the judiciary's moral authority and foster public confidence in its integrity
and independence. A decision by the NA will be unlawful and unconstitutional if it frustrates ,
rather than assists or protects, the independence , impartiality , dignity, accessibility , and
effectiveness of the courts. The designation of an individual who himself has been found to
39
be unfit to continue serving as a judge, to participate in the selection of judges gravely
compromises the integrity of the selection process and undermines public confidence in the
judiciary's ability to fulfil its constitutional mandate. The decision of the NA is unlawful and
unconstitutional as it frustrates the requirements in section 165(4) of the Constitution .
Accordingly, the designation of Dr Hlophe to the JSC cannot be said to advance the
constitutional purpose of ensuring the appointment of fit and proper candidates to the bench.
His designation was therefore irrational and therefore falls to be reviewed.
Relevant and irrelevant considerations
[107] The decision by the NA falls to be set aside on the basis that it failed to properly consider
relevant considerations but instead considered various irrelevant considerations in arriving at
its decision.
[108] The NA departed from the premise that no provision in the Constitution bars the
designation of a member of the NA to the JSC. Dr Hlophe submitted that the fact that he was
previously a judge and was removed is "totally irrelevant".
[109] As previously pointed out, this interpretation of section 178, read with section 165 of
the Constitution , is untenable. The NA was obliged to consider a glaringly relevant fact,
namely that the NA had recently impeached Dr Hlophe for gross misconduct. Instead, the NA
considered the following irrelevant considerations:
(a) That the NA must, in terms of the NA's ordinary practice or convention , accept
the decision of a political party in appointing a representative to a committee
or subcommittee of the Assembly. The answer to this simply is that the
practice or convention followed by the NA cannot displace what section
178(1 )(h) of the Constitution requires.
(b) The JSC is not a committee or subcommittee of the NA.
(c) The only requirement is that at least three of the six candidates must be
representatives of minority parties. Despite having been nominated by the
respective parties, the NA must exercise discretion to designate six members
of the National Assembly to the JSC.
Conclusion of the review
40
[11 0] Section 1 (c) of the Constitution entrenches the rule of law as a founding value in our
constitutional order and affords the courts the power to set aside any unlawful conduct by an
organ of state.82 The NA, similar to all other organs of State, is bound by the Constitution and
is required to comply with the constitutional obligations it imposes. We are satisfied that the
decision to designate Dr Hlophe must be reviewed and set aside on each of the grounds
advanced. The NA's decision is inconsistent with section 165(4) of the Constitution. This
inconsistency, in and of itself, renders the decision unlawful. The National Assembly's
designation of Dr Hlophe was neither a lawful nor rational decision considering his
impeachment and the reasons therefor as traversed above.
Remedy
[111] Apart from seeking a review of the decision by the NA to designate Dr Hlophe as one
of its representatives to the JSC, the DA, Corruption Watch and FUL seek a declaration that
the NA may not designate Dr Hlophe to serve on the JSC. FUL further seeks an order
remitting the matter back to the NA for reconsideration.
[112] In exercising a discretion to grant a declaratory order, a court must do so with due
regard to all relevant facts. One of the factors that the court must take into consideration is
whether the applicant/s has an interest in an existing future or contingent right or obligation.83
A court must also consider whether a declaratory order can clarify and finalise disputes that,
if unresolved, may have far-reaching consequences for each party.84 The present matter is
plainly such a case.
[113] The NA has fundamentally misunderstood the nature of its power to designate six
members to serve on the JSC. We concur with the submission that the constitutional
principles implicated in this matter extend beyond the specific facts of the present case and
will bear significantly on how the NA exercises its powers under section 178 of the
Constitution in future. As submitted by FUL, the granting of declaratory relief is essential to
uphold the integrity of the judicial appointment process, the independence of the judiciary,
82 SA Broadcasting Corporation SOC Ltd and Another v Motsoeneng and Others (2024] ZAGPJHC 688 ;2025
(2) SA 571 (GJ) at para 7 with reference to State Information Technology Agency SOC Limited v Gijima
Holdings (Pty) Limited [2017) ZACC 40 ;2018 (2) SA 23 (CC); 2018 (2) BCLR 240.
83 Cordiant Trading CC v DIMLER Chrysler Financial Services (Pty) Ltd [2005) ZASCA 50; 2005 (6) SA 205
(SCA) at para 18.
a4 Competition Commission v Hosken Consolidated Investments Ltd and Another [2019] ZACC 2;2019 (3) SA
1 (CC); BCLR 470 (CC) at paras 59 and 81.
41
and the broader public interest.
[114) The Speaker has indicated that a new designation will be required given Dr Hlophe's
resignation from the JSC. She has further acknowledged that any future designation by the
NA must be guided by this Court's determination on two issues: firstly, whether the NA has a
discretion to assess the fitness of a nominee for designation under section 178(1 )(h) of the
Constitution , and, secondly, whether it acted lawfully or unlawfully in making the previous
designation. We have addressed both these issues.
[115) What now remains is the question of whether this Court should grant a declaratory
order to the effect that Dr Hlophe is not fit and proper to serve on the JSC, and, as a
consequence , that the NA may not designate him to that position. Granting a declaratory
order, which is a flexible remedy, will, in the words of the Constitutional Court in Rail Commuters
Action Group v Transnet Ltd t/a Metrorail,85 "assist in clarifying legal and constitutional
obligations in a manner which promotes the protection and enforcement of our Constitution
and its values."
[116) Having regard to the specific circumstances surrounding the impeachment of Dr
Hlophe and his subsequent conduct, we are satisfied that he is neither fit nor proper for
designation to the JSC. As we have repeatedly emphasised, the participation of Dr Hlophe in
the judicial appointments process risks eroding public confidence in the judiciary and thereby
undermining its legitimacy and effectiveness. As previously stated, public disrespect for the
judiciary amounts to an assault on constitutional democracy and must be firmly guarded
against. Through the impeachment of Dr Hlophe, the NA has effectively already determined
that his continued involvement in judicial affairs would diminish public trust.
[117] The fact that Dr Hlophe is highly qualified and the fact that he has served as a judge
for many years, is not the point. The point is that he was removed from office for gross
misconduct and continues to seriously threaten the independence of the judiciary. His
doctorate from Cambridge and his numerous publications and time on the bench do not erase
this critical fact. It is the presence of an impeached judge and the circumstances that gave
rise to the impeachment that will prejudice the JSC's ability to do its work. Dr Hlophe's
as [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) at para 108. ; the Constitution al Court held:
"It should also be borne in mind that declaratory relief is of particular value in a constitutional democracy which
enables courts to declare the law, on the one hand, but leave to the other arms of government , the executive
and the legislature, the decision as to how best the law, once stated, should be observed ."
42
academic ability does not cure this.
[118] As previously indicated, it is not necessary for us to find that no judge removed from
office for gross misconduct may ever serve on the JSC. In this matter, however, we must
consider the specific misconduct for which Dr Hlophe was impeached and the events that
followed his impeachment. His conduct, as recorded in the judgment of the Full Court refusing
leave to appeal Part A, is particularly pertinent, as it demonstrates a marked disregard for the
authority and integrity of the courts. Dr Hlophe is therefore not only unfit to serve on the JSC
because he was removed from judicial office for gross misconduct; he is also unfit because
he has persistently sought to undermine the credibility of the JSC, the JSC's investigative
processes into the allegations against him, and the judges who have presided over matters
in which he was a litigant. In these circumstances , the granting of a declaratory order is
justified.
[119] We should also, in passing, briefly refer to Dr Hlophe's reliance on foreign authority,
which permitted persons in positions comparable to Dr Hlophe to serve on bodies comparable
to the JSC. The European Court of Human Rights86 was approached for an advisory opinion
in a matter concerning the imposition of a prohibition on an individual to register as a
candidate in the Seimas elections following her impeachment owing to her fleeing Lithuania
in view of pending criminal proceedings. The advisory opinion was preceded by the judgment
of the Lithuanian Constitutional Court which held that a prohibition that an impeached
president may not hold public office, including parliamentary membership was
disproportional. 87
[120] In its advisory opinion, the European Court of Human Rights considered the
circumstances under which the Lithuanian government could lawfully bar an impeached
legislator (Ms. Paksas) from holding public office in the future. In brief, the European Court of
Human Rights emphasized that the duration and scope of such a prohibition should be
assessed primarily with reference to the nature of the functions the individual seeks to
perform. The rationale for this is that the purpose of impeachment and the resulting restriction
is not punitive in nature, but rather aimed at safeguarding the integrity of legislative
as Advisory opinion on the assessment, under Article 3 of Protocol No. 1 to the Convention , of the proportionality
of a general prohibition on standing for election after removal from office in impeachment proceedings. The
advisory opinion was sought by the Lithuanian Supreme Administrative Court and is dated , 8 April 2022.
s1 Paksas v Lithuania (34932104). Judgment (Merits and Just Satisfaction) European Court of Human Rights
(Grand Chamber) 6 January 2011.
43
institutions. Accordingly, any such prohibition must be framed principally in regard to the
institutional requirements and the proper functioning of the office or body to which the person
seeks admission.
[121] In reaching a conclusion, the European Court of Human Rights opined that the ban
should be proportionate with due regard to all relevant circumsta nces including the
"requirements of the proper functioning of the institution of which that person seeks to become
a member, and indeed of the constitutional system and democracy as a whole in the State
concerned."
[122] Apart from the fact that the European Court of Human Rights only expressed an
opinion, the Paksas matter is distinguishable from the present matter on the facts and on the
law. In that matter, the European Court of Human Rights was considering in what
circumstances Lithuania could prohibit an impeached legislator from holding public office
again. Here we are dealing with an impeached judge which in itself raises entirely different
considerations pertaining to the importance of judicial integrity. The Paksas matter also does
not assist Dr Hlophe from a legal point of view in light of the Court's opinion that bans on
holding public office after impeachment are justified to protect the proper functioning of the
institution of which that person seeks to become a member and indeed of the constitutional
system and democracy as a whole in the State concerned.
Should the matter be remitted to the NA?
[123] Section 172(1 )(a) of the Constitution empowers a court, when determining a
constitutional matter or declaring any law or conduct inconsistent with the Constitution , to
declare it invalid to the extent of that inconsistency. FUL seeks an order remitting the matter
to the NA. In considering such an order, the court's discretion is guided solely by
considerations of justice and equity.
[124] We have taken into account that Dr. Hlophe has since resigned from the JSC. Given
our order declaring Dr. Hlophe unfit for designation in terms of section 178(1 )(h) of the
Constitution, a remittal would neither be just nor equitable and would not serve any practical
purpose.
Costs
44
[125] The DA, FUL, and Corruption Watch seek costs against the respondents who oppose
these applications , including the costs of two counsels. They also seek punitive costs against
Dr Hlophe and MK on an attorney-client scale.
[126] Both FUL and DA rely on various public statements made by MK and Dr Hlophe,
including accusations that FUL is "colluding" with the DA and has "an obsessive and
fundamentalist agenda to obliterate my role in my country."
[127) FUL is further described as a "racist agents of white monopoly capital masquerading
as civic organisations -who want to usurp the power of the Legislature using the Judiciary."
The DA is described as "mercenaries of the white imperialist project who continue to seek to
exhume and rebury Dr. Hlophe for his competence and excellence."
[128) Dr Hlophe also accuses Retired Judge Cachalia of abusing his position as a retired
judge and spreading false and dishonest statements.
[129) President Mpati, Mr. Bizos, former Chief Justice Mogoeng, Mlambo JP, Kamphepe
ACJ, Mbha J, and Premier Winde have all been accused of bias.88
[130) The judges who presided over Part A of these proceedings were also subjected to
vitriolic attacks. The judgment in Part A was characterised as a "gross judicial overreach ,"
allegedly for disregarding the very provisions of the Constitution it purported to uphold. The
court was further accused of being "politically driven", and the judgment was disparagingly
described as a "horror judgment".
[ 131) In Minister of Cooperative Governance and Traditional Affairs v De Beer, 89 the
Supreme Court of Appeals regarded similar statements as sufficiently contemptuous that the
court drew specific attention thereto in referring its judgment to the National Director of Public
Prosecutions. In Moyane v President Ramaphosa and Others, the court similarly had this to
say about unsubstantiated insults:90
"[W]hen an award of costs is considered , which is within the discretion of the Court: 'It is a
discretion that must be exercised judicially having regard to all relevant considerations. One
88 FUL's RA, at para 79.
89 Minister of Cooperative Governance and Traditional Affairs v De Beer and Another [2021] ZASCA 95; [2021]
3 All SA 723 (SCA) at para 118-9.
90 Moyane v President Ramaphosa and Others [2018) ZAGPPHC 835; (2019) 1 All SA 718 (GP) at para 44.
45
such consideration is the general rule in constitutional litigation that an unsuccessful litigant
ought not to be ordered to pay costs. The rationale for this rule is that an award of costs might
have a chilling effect on the litigants who might wish to vindicate their constitutional rights. But
this is not an inflexible rule. There may be circumstances that justify departure from this rule
such as where the litigation is frivolent or vexatious. There may be conduct on the part of the
litigant that deserves censure by the Court which may influence the Court to order an
unsuccessful litigant to pay costs. The ultimate goal is to do that which is just having regard to
the facts and circumstances of the case'. This principle has been applied throughout
constitutional litigation and I will apply it in these proceedings. It is clear from my judgment that
the conduct of the Applicant in these proceedings is particularly reprehensible. It is vexatious
and abusive. Both the Office of the President and the Third Respondent have been attacked,
insulted and defamed without any reasonable cause. Allegations impugning their integrity and
character have been made regardless of the objective facts. Insults have been hurled at every
conceivable opportunity. No reasonab le or lawful grounds exist for such unwarranted attacks
on the integrity of the First and Third Respondents . No cause of action has been made out for
interim relief and the whole of the application is an abuse of the process of this Court. I cannot
think of a single reason why this application should be classified as a bona fide attempt to
secure or safeguard the Applicant's Constitutiona l, common law or contractual rights. I have
set out the relevant considerations in my judgment and on the facts of the matter before me,
there is in my view no reason whatsoever why I should not make a cost order against the
Applicant. Not only is a cost order appropriate in this instance, but on the punitive scale of
Attorney and client for the reasons that I have already mentioned. It is time that litigants realize
that they cannot lightly make abusive allegations in Court affidavits under the mantle of
safeguarding their constitutional rights, on the assumption that Court cost orders would not be
granted against them. In my opinion, the facts of the matter before me clearly show that a
punitive cost order against the Applicant is justified. His behaviour throughout these
proceedings is abominable. "91
[132] We agree with the submissions by FUL, the DA, and Corruption Watch that the
statements made by MK and Dr Hlophe underscore their ongoing efforts to undermine the
judiciary. Both his conduct and that of MK justify costs on a punitive scale.
Order
[133] In the premises , the following orders are made:
91 Emphasis added.
46
AND Case No. 16170/24 (Democratic Alliance v MJ Hlophe and Others)
1. The decision of the National Assembly taken on 9 July 2024 to designate the
First Respondent as one of its representatives to the JSC is:
1.1 Declared unconstitutional and invalid; and
1.2 Reviewed and set aside.
2. It is declared that the National Assembly may not designate Dr. Mandlakayise
John Hlophe to serve on the Judicial Services Commission in terms of section
178(1 )(h) of the Constitution.
3. Dr Mandlakayise John Hlophe and the Umkhonto Wesiwe Party are ordered
to pay the applicant's costs on an attorney and client scale, including the costs
of two counsel on Scale C.
Case no: 16771/2024 (Corruption Watch NPC v Speaker of the National Assembly
and others)
1. The decision of the National Assembly taken on 9 July 2024 to designate the
First Respondent as one of its representatives to the JSC is:
1.1 Declared unconstitutional and invalid; and
1.2 Reviewed and set aside.
2. It is declared that the National Assembly may not designate Dr. Mandlakayise
John Hlophe to serve on the Judicial Services Commission in terms of section
178(1 )(h) of the Constitution.
3. Dr Mandlakayise John Hlophe and the Umkhonto Wesiwe Party are ordered to
pay the applicant's costs, including the costs reserved in Part A, on an attorney
47
AND and client scale. including the costs of two counsel on Scale C.
Case No. 16463/24 {Freedom Under Law NPC v The Soeaker of the National
Assembly and Others)
1. The decision of the National Assembly taken on 9 July 202'1 to designate tl)e
First Respondent as one of its representatives to the JSC is:
1.1 Declared unconstitutional and invalid: and
1.2 Reviewed and set aside.
2. It is declared that the National Assembly may not designate Dr. Mandlakay1se
John Hlophe to serve on the Judicial Services Commission in terms of section
178(1)(h) of the Constitution.
3. Dr Mandlakayise John Hlophe and the Umkhonto Wesiwe Party are ordered
to pay the applicant's costs. including the costs reserved in Part A, on an
attorney and client scale, including the costs of two counsel on Scale C.
MBHELE AJP
JUDGE OF THE HIGH COURT
SASSON J
JUDGE OF THE HIGH COURT
Appearances:
THE DA'S LEGAL REPRESENTATIVES
Counsel:
Instructed by: Ismail Jamie SC
Michael Bishop
Eshed Cohen
Minde Schapiro and Smith. JUDGE OF THE HIGH COURT
Elzanna Jonker and Shannon Solomon
FUL'S LEGAL REPRESENTATIVES
Counsel:
Instructed by: Wirn Trengove SC
Max Du Plessis SC
Sarah Pdfifin-Jones
Stuart Scott
Sechaba Mohapi
Nortons inc
Anton Roets
cw·s LEGAL REPRESENTATIVES
Counsel: Geoff Budlender SC
Pranisha Maharaj-Pillay
lv1itchell de Beer
49
Instructed by: Norton Rose Fulbright Inc South Africa
Laura Macfarlane and Jason Whyte
THE NA'S LEGAL REPRESENTATIVES
Counsel:
Instructed by: Adv Adila Hassim SC
Adv Adiel Nacerodien
The State Attorney, Cape Town
MK'S LEGAL REPRESENTATIVES
Counsel:
Instructed by: Dali Mpofu SC
Lerato Moela
Libongo Ndabula
KMNS Attorneys
Thabo Kwinana
DR HLOPHE'S LEGAL REPRESE NTATIVES
Counsel:
Instructed by:
Date of Hearing:
Date of Judgment: Thabani Masuku SC
M. Simelane
N. Mjiyako
B Xulu and Partners Incorporated
Barnabas Xulu
25 February -27 February 2025
2 June 2025
50