Prospect of impeached Judge John Hlophe serving on the JSC would be a travesty of justice By Judith February and Chris Oxtoby

This article first appeared in Daily Maverick.

South Africa’s May 29 elections ushered in a seismic change in South African political life, the full extent of which has yet to become clear. The thus-far peaceful, partial transition of power is a milestone for our democracy.

A coalition Government of National Unity (GNU) will undoubtedly present challenges, as the extended wait for the announcement of Cabinet positions shows.

Despite the challenges, there will be important windows of opportunity to address some of the fundamental governance challenges facing our beleaguered country.

The seventh Parliament is already off to a bumpy start as regards ethics. Last week saw MK party MPs sworn in after their initial absence at the first sitting of Parliament. There were more than a few eyebrows raised when disgraced and impeached Judge John Hlophe was resurrected as an MP for that party.

What allegiance can Hlophe have to the Constitution, having breached his sacred oath? Whether he has the stamina and commitment to do the actual work of Parliament remains to be seen. But there is no doubt about the method in MK’s move. Hlophe’s dangerous brand of grievance politics echoes that of Jacob Zuma.

Of course, Hlophe is not the only rogue MP: the ANC’s Zizi Kodwa, currently facing corruption charges, was sworn in too, as was the disgraced and impeached former Public Protector, the EFF’s Busisiwe Mkhwebane.

In public discourse about the GNU, attention has primarily focused on Cabinet positions and questions about the sustainability of the GNU in light of fundamental differences between member parties. But there are, of course, many consequential governance questions that the GNU will need to address, which are vitally important for the health of our constitutional democracy. One of these is how the GNU will deal with issues relating to the judiciary.

It is frequently said that the judiciary is a crucial part of our constitutional democracy, in light of the extensive powers the Constitution vests in our judges. This makes issues such as how judges are appointed and how the judiciary is governed and administered critical to the strength of our constitutional democracy — making it essential that the GNU gets decisions on these issues right.

Appointing judges

The GNU will have several important matters relating to the judiciary in its in-tray. The process of appointing a new Chief Justice (and Deputy President of the Supreme Court of Appeal), which began before the elections, has yet to be completed and a long-standing impasse over the governance structure of the judiciary needs to be finalised. In the short term, a new Parliament means a change in the composition of the Judicial Service Commission (JSC).

The JSC plays a central role in appointing judges. For the appointment of all judges outside the Constitutional Court, it in effect decides who will serve in the judiciary (the formal act of appointment is made by the President, but he cannot overrule the JSC’s recommendation).

For appointments to the Constitutional Court, the JSC provides the President with a list of candidates from which the appointment is made.

The composition of the JSC merits particular attention in the current post-election environment because it includes six members designated by the National Assembly, at least three of whom must be members of opposition parties, as well as four members of the National Council of Provinces, four persons designated by the President, and the minister of justice. All of these positions will need to be re-evaluated in light of the changes to the political landscape.

Most obviously, the formation of the GNU seems certain to require a change in the designated “opposition” members of the National Assembly, two of whom (the DA’s Glynnis Breytenbach and the IFP’s Narend Singh) will no longer qualify as “opposition” party members following their parties’ inclusion in the GNU.

It also remains to be seen whether the previous minister of justice, Ronald Lamola, will retain his position. The designation and nomination of JSC commissioners will require agreement with GNU partners and should be informed by the culture of collaboration which will need to infuse much of our political life in this new era.

It is also crucial that the new JSC appointments are of strong individuals committed to a functional and progressive judiciary. The JSC has often been the subject of criticism and has even had to rerun interviews because of the threat of litigation. In late 2022, Freedom Under Law produced a report identifying many shortcomings in how the JSC functions. The seventh Parliament and the GNU offer an opportunity to strengthen this key institution by ensuring that it is constituted by commissioners with a keen understanding of and commitment to the rule of law and constitutional democracy.

A glaring exception

This does not mean that wholesale change is needed. Some of the existing commissioners have played a commendable role in ensuring greater intellectual rigour in the JSC’s public interviews of judicial candidates. For example, two of the presidential nominees, advocates Sesi Baloyi and Tembeka Ngcukaitobi, have been particularly prominent in this regard and hopefully their involvement will continue.

The impact of the changed political landscape on the JSC has so far attracted little public attention, with one glaring exception. The announcement that Hlophe is to be the leader of the MK party in the National Assembly has prompted speculation that he has been earmarked by the MK party to serve as a member of the JSC.

Leaving aside, for now, questions about whether Hlophe may even lawfully be parachuted to the top of the party list, the prospect of an individual who was removed from judicial office for gross misconduct sitting on a body responsible for appointing judges would be plain wrong. It highlights the careful attention that needs to be given to those Parliament and the GNU designate to fill positions on the JSC.

It is surely inappropriate for someone impeached from public office to serve as a member of Parliament even if there appears to be no legal impediment to this and even if Parliament already includes Mkhwebane. It does not — or should not— follow that any member of Parliament should be appointed to a body like the JSC simply because of their position in Parliament.

The JSC must function effectively and lawfully. A strong judiciary is crucial to upholding constitutional democracy and the rule of law. This requires an appointment process that delivers the best possible judges.

With a new Chief Justice, who will chair the JSC, soon to be appointed, and new commissioners to be designated from the political branches of government, there is a golden opportunity to strengthen the JSC by ensuring that it is comprised of members who are committed to the rule of law and constitutional democracy. The GNU and Parliament should be guided by these considerations when they deal with these matters.